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H. OF R.]

Removal of the Indians.

[MAY 18, 1830. the right of the Pope to make these grants, made out their Superintendent of Indian affairs of the King, in which, commissions on the same principle, the distinction between after mentioning that the Five Nations, in 1791, had put infidel and christian nations. It is true that grants were their lands under the protection of the King, to be guaranmade, charters passed under the great seal, aud the Bri-tied to them and their use, and that certain other tribes, in tish Crown asserted the right of conveying the soil, though 1726, had put their lands also under the same protection, in possession of the natives; or, as it has been sometimes to be protected and defended by the said King, his heirs said, of appropriating the lands occupied by the Indians. and successors, to the use of the tribes and their successors But it was only the ultimate right of property, the rever forever, he adds, "You are in my name to assure the said sionary interest, which they claimed, aud which they pro- nations that I am come by his Majesty's order to build fessed to have the power to convey. It was the right to such forts as shall protect and secure the said lands to extinguish the Indian title of occupancy, and nothing them, their heirs and successors, forever." more, which they either possessed or claimed to possess. The Indians were always "admitted by the Crown to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it, according to their own discretion," and of which they could not be dispossessed by legislation, but by conquest or cession only.

I have said that the Indian title, thus explained, was always and uniformly admitted by the Crown, the colonies, the States, the old confederation, and the Government of the United States since the adoption of the con stitution; and that it has received the sanction of the highest judicial tribunal of this country. I will ask the attention of the committee to the proof in support of this position. In 1750, the Superintendent of Indian affairs informed the Indians assembled at Mobile, in the name of the King. that no encroachments should be permitted on their lands; and that all treaties made with them would be faithfully kept on the part of the Crown.

In the memorial delivered by the British minister to the French negotiator in 1755, (June,) he says: "Whatever pretext might be alleged by France, in considering these countries asthe appurtenances of Canada, it is a certain truth that they have belonged, and, as they have not been given up or made over to the English, belong still, to the same Indian nations. What the court of Great Britain maintains, what it insists upon, is, that the Five Nations of the Iroquois are by origiu, or by right of conquest, the lawful proprietors of the river Ohio, and the territory in question."

In May, 1755, Sir William Johnson said to the Six Nations: " Agreeably to the instructions I have received from the great King your father, I will reinstate you in the possession of your lands." And again, in February, 1756: The King will protect your country, and the lands which your fathers conquered, and are of right your territories, against all violence."

In 1762, the commanding officer at Fort Pitt prohibited, by proclamation, any of the subjects of the King from settling west of the Alleghany mountains, that country having, by the treaty at Easton, in 1758, been allowed to the Indians for their hunting grounds."

In August, 1760, Lord Amberst assured the Six Nations In September, 1753, by order of the King, instructions" that their lands should remain their absolute property." were sent to the Governor of the province of New York, to appoint commissioners, who, in conjunction with commissioners from other neighboring Governments in alliance with them, should make a treaty in his Majesty's name, with the Six Nations. In these instructions, it is stated, 'that nothing may be wanting to couvince the Indians of In 1763, a royal proclamation was issued, restraining the sincerity of our intentions, you will do well to examine the Governor of Virginia from making grants west of the into the complaints they have made of being defrauded of Alleghany mountains, because that country, not having their lands to take all proper and legal methods to redress been ceded to or purchased by the Crown, was reserved their complaints, and to gratify them by reasonable pur-to the tribes of Indians who lived under the protection of chases, or in such other matters as you shall find most pro- the King, as their hunting ground.

per and agreeable to them, for such lands as have been I will not detain the committee by quoting from the unwarrantably taken from them, and for such other as they proceedings at what was called the Congress of Fort may have a desire to dispose of." In Juue, 1754, pursu- Stanwix, in 1768; from the opinions of the learned in the ant to these instructions, commissioners met at Albany, profession in England, of Dr. Franklin, Patrick Henry, from the provinces of New York, New Hampshire, Massa- Judge Pendleton, and Mr. Mercer, on the operation and chusetts, Rhode Island, Connecticut, Maryland, Pennsyl-effect of the grant from the Six Nations to William Trent, vania, and Virginia. Hendrick, in behalf of the Six and of the ratification of that grant by the Crown, by the Nations, told the commissioners, "that the Governors of treaty at Fort Stanwix. It may be remarked, however, Virginia and Canada were both quarelling about lands that all these distinguished men agreed in opinion that the which belonged to them." The commissioners replied to title of the Indians was one which could not be disturbed them, and said: "We gladly understand that you gave no without their consent; and some of them supposed their countenance to the French, who went to the Ohio, and power to convey was absolute, both as to the manner bave entered on your lands. You did put this land under and the grantees, as an incident to their right of property the King our father, and he is now taking care to preserve in the soil. it for you. For this end, among others, he has directed us to meet you here; for although the land is under the King's Government, yet the propriety or power of selling it to any of his Majesty's subjects, having authority from him, we always considered as vested in you. We ever did, and still do, acknowledge it to belong to you, although within your father the King of Great Britain's dominion, and under his protection!" A treaty of alliance and defence was, at that time, made with the Six Nations.

The treaties made between Great Britain and the Chickasaw and Choctaw Indians, at Mobile, 1765, and the Upper and Lower Creeks, at Pensacola, in May and November, 1765, all recognise the same right in these tribes, which has heretofore been stated: boundaries are established, and all the lands not embraced within the limits which include what the Indians reserve to themselves, and which are declared in these treaties to belong to them, aud in which they have full right and property, are granted and coufirmed to the Crown.

In allusion to this treaty, the Governor of Pennsylvania, in his address to the Assembly of that State, says: "From It may safely be affirmed, that in no iustance did the the proceedings at the late treaty of Albany, you will Crown of England ever claim in practice a right by discoclearly perceive that the lands on the river Ohio do yet very, but only by purchase, to interfere with the Indian belong to the Indians of the Six Nations, and have long title of occupancy, as before explained. It admitted in the since been put under the protection of the Crown of Eng-fullest extent the necessity of extinguishing it, before the Indians could be deprived of their lands; and in all their In April, 1755, General Braddock sent instructions to the acts, whether in the form of instructions, proclamations,

land."

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laws, or treaties, acknowledged the title of the aborigines, | United States in Congress assembled, prohibiting all perand claimed only the exclusive right of purchase, and the sons from making any settlements on, or purchasing any ultimate reversionary right in fee.

Such being the relative situation of the Crown and the Indian tribes, as to the lands occupied by them, let me now call the attention of the committee to the acts and declarations of the colonies and States, particularly Geor gia, and it will be seen that the same principles were adopted, the same rights conceded to the Indians, and the same interest asserted to exist in the colonies and States.

lands inhabited or claimed by the Indians without the limits or jurisdiction of any particular State; and declaring all such purchases, without the express authority of Congress, void.

In October, 1783, Congress resolved that a convention be held with the Indians in the northern and middle departments, for the purposes of receiving them into the favor and protection of the United States, and for establishing boundary lines of property.

In June, 1779, the Assembly of Virginia resolved that In March, 1785, Congress resolved that a commission the commonwealth had the exclusive right of pre-emption be opened for treating with the Cherokees and all other from the Indians within the limits of its own chartered Indians southward of them. And in June, 1786, Conterritory, and that such exclusive right of pre-emption gress directed the commissioners who were to hold this would and ought to be maintained by the commonwealth treaty, for the purpose of obtaining from them a cession to the utmost of its power. This is all the right which of lands, to make such cession as extensive and liberal as they asserted and claimed. possible.

In 1733, Oglethorpe, the founder of Georgia, made a treaty with the Lower Creeks, in which he obtained cessions of lands from them, and in which it is declared that though the lands belong to them, (the Indians,) they will permit the English to use and possess a part of them, and that the rest should remain to the Creeks forever.

In 1738, he made another treaty with the assembled States of all the Lower Creek nations, in which substantially the same provisions were inserted.

In August, 1786, Congress passed an ordinance for the regulation of Indian affairs, the preamble of which states that the safety and tranquility of the frontiers of the United States depend, in some measure, on the maintaining a good correspondence between their citizens and the several nations of Indians. This ordinance regulates the intercourse with the tribes.

In November, 1785, the treaty of Hopewell was made. Its provisions need not be referred to.

It will be seen that all the acts of the continental Con

In 1763, another treaty was made with the Catawba, Cherokee, Choctaw, Chickasaw, and Creek nations, ingress were predicated on the assumed basis that the Indian which cessions of land were made; and in May, 1773, another treaty was made with the Cherokee and Creek nations: by which_boundaries were established, and cessions made by the Indians.

In 1777, a treaty of peace was made between South Carolina and the Cherokees. to which Georgia was a party, in which the commissioners of both States and the Cherokees exchanged their respective full powers, in which a cession is made by the Cherokees of all the lands eastward of the Unacaye mountain, to the State of South Carolina, as having been acquired and possessed by that State by conquest; and in the eighth article, it is declared that the batchet shall be forever buried, and there shall be a universal peace and friendship re-established be tween South Carolina, including the Catawba and Georgia on the one part, and the Cherokee nation on the other; there shall be a general oblivion of injuries; the contracting parties shall use their utmost endeavors to maintain the peace and friendship now re-established; and the Cherokees shall, at all times, apprehend and deliver to the commanding officer at Fort Rutledge, every person, white or red, who, in their nation or settlements, shall by any means endeavor to instigate a war by the Cherokee nation, or hostility or robbery by any other people, against or upon any of the America States, or subjects thereof. Can Georgia enter into a treaty with her own citizens give peace to those who are not enemies, but traitors?

In 1783, another treaty was made between the State of Georgia and the Cherokee nation, by which peace was established, and a pernianent boundary was established.

It is unnecessary to go further. The acts of Georgia furnish unequivocal evidence of her acquiescence in the doctrine that the Indian tribes within her territorial limits, of right, might maintain the unmolested occupation of their lands.

I will now advert to the acts and declarations of the confederated States, and it will be seen that they entirely coincided, on the subject of the Indian title, with the principles assumed and neted on by the Crown and the colonies. In January, 1776, Congress resolved that no person shall be permitted to trade with the Indians, without license from one or more of the commissioners of each respective department.

In September, 1788, a proclamation was issued by the VOL. VI.

tribes had a just and legal right to the occupancy of their lands, indefinitely, and that the only subsisting right of the Government to them was what had been heretofore stated -the exclusive right of purchase, and ultimate, contingent right in fee.

But the proceedings of the Government, after the adoption of the constitution, if valid, put an end to every question regarding the title of the Indians. In the treaty of Holston, made with the Cherokees in 1791, the seventh article provides that the United States will solemnly guaranty to the Cherokees all their lands not thereby ceded. When this treaty was transmitted to the Senate, it was referred to a committee consisting of Mr. Hawkins, of North Carolina, Mr. Cabot, of Massachusetts, and Mr. Sherman, of Connecticut, who reported, among other things, that they had examined the treaty, and found it strictly conformable to the instructions given by the President of the United States, and that those instructions were founded on the advice and consent of the Senate, and that the Senate advise and consent to the ratification of the treaty. Various other treaties with the same and with other tribes contain a similar provision; and if these treaties have any binding force, it is needless to inquire what were the rights of the Indians before the conclusion and ratification of these treaties, or what were the rights of the Government. These solemn compacts contain a promise of security in possession of their lands, and give them a title, if they had not one before. How far it was competent for the United States to enter into these stipulations, I shall not, in this stage of the discussion, inquire. That I shall consider, when I refer to them, as conclusive to show that the States are excluded from making any legislative enactments to affect them.

I have now considered the nature and extent of the Indian title as recognised by the Crown, the colonies, the States, the continental Congress, and the United States, since the adoption of the constitution. On the subject of this title, it only remains for me to show, as I promised to do, that the title, as thus acknowledged, has received the sanction of the judicial department of this Government.

In Fletcher vs. Peck, (6 Cranch, pp. 142-3.) it is said: "The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts until it be legitimately extinguished, is not such as

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to be absolutely repugnant to seizing in fee on the part of ed to the claims of civilized communities over those of the State." Here is a complete recognition of a title. It savage tribes." "That the principle was adopted that they is not absolutely repugnant to the idea that the State may had no permanent interest in their hunting grounds." "That be seized in fee, because the State has the ultimate domi- treaties were but a mode of government, and a substitute nion-the right expectant upon the determination of the for ordinary legislation, which were from time to time disestate in the Indians. So long as the Indians occupy, the pensed with." "That the tribes were indulged in the ' par right of the State is dormant: it cannot be exercised. It tial' enjoyment of their ancient usages." That the essenis only in the event that the occupancy ceases, or the right tial point in the policy of Georgia was, that the Indian to occupy becomes extinct, that the ultimate right of the reservations should be gradually contracted within such -State can be enforced. Judge Johnson, in the same case, reasonable limits, that no part of the country should con(pp. 146-7,) says, the Indians have the absolute proprie- tinue uncultivated. That her policy, in this respect, was torship of the soil. The uniform practice of acknowledg a part of her rights, and that any thing which tended to ing their right of sol, by purchasing from them, and defeat its operation was a deprivation of right." I will restraining all persons from encroaching upon their terri- pursue these quotations no further. They are negatived tory, makes it unnecessary to insist upon their right of soil. by history, by authenticated records, by universal usage, But it was reserved to this court, at a later period, to by legislative acts, and by judicial determinations. give to this subject a great degree of attention, and to in- Having thus disposed of the question, what is the nature vestigate, ascertain, and declare the nature and extent of and extent of the Indian title to the lands which they de the Indian title. This was done in 1823; and the case of cupy, and having shown, I hope, that it is one which, for Johnson vs. McIntosh (8 Wheaton) furnishes us with the all practical purposes, is absolute, and limited only by the result. In that case, the Chief Justice, delivering the opi- right of the General Government, of exclusive purchase, nion of the court, says: "The original inhabitants were and of the reversionary interest in fee, I proceed to inquire admitted to be the rightful occupants of the soil, with a into and answer the question, have the States in which legal as well as just claim to retain possession of it, and to these tribes reside the power to extend their legislative use it, according to their own discretion. While the dif- enactments over them, and thus to abolish among these ferent nations of Europe respected the right of the na- tribes the power of self-government, and the laws, usages, tives as occupants, they asserted the ultimate dominion to and customs, by which their affairs from time immemorial be in themselves, and claimed and exercised, as a conse- have been regulated? If I do not very much mistake, quence of this ultimate dominion, a power to grant the an examination of this subject will result in an entire consoil while yet in the possession of the natives. These viction that no such power has ever existed, or does now grants have been understood by all to convey a title to the exist. grantees, subject only to the Indian right of occupancy. The advocates of this power insist upon the rights claimIt has never been doubted that either the United States, ed and possessed by the Crown to exercise it while the or the several States, had a clear title to all the lands United States were colonies; that, by the declaration of indewithin the boundary lines described in the treaty, subject pendence, and the treaty of peace, this power, this right of only to the Indian right of occupancy, and that the ex sovereignty and legislation, was transferred to the States, clusive power to extinguish that right was vested in that as sovereign, independent communities; that it has never Government, which might constitutionally exercise it. It been surrendered by the States to the Federal Governhas never been contended that the Indian title amounted ment, but is rather guarantied and secured to them by the to nothing. Their right of possession has never been ques-constitution under which that Government is founded. tioned. The claim of Government extends to the com- I take the liberty to say that, in my opinion, but one of plete ultimate title, charged with this right of possession, these propositions can be sustained; and even that is by no and to the exclusive power of acquiring that right." means free from doubt. I refer to that which assumes After these adjudications, confirmatory of alt previous that the rights of sovereignty and legislation (whatever practice, legislation, and treaties, and giving to that prac they were) became vested in the States individually, upon tice the solemn sanction of the united opinion of the bench their becoming independent of the Crown. To say the of the Supreme Court, can it be doubted that the title of least, it might be contended, with some plausibility, that the Indian tribes to the lands they occupy is practically as these rights became vested in the confederated Union first, complete, perfect, and absolute, as that of any citizen of and afterwards in the Government formed under the conthis country to the farm on which he lives, and which has stitution, rather than in the individual S ates. Hence the "descended to him after having been in the occupation of cautious remark of Chief Justice Marshall, (8 Wheaton, father and son from generation to generation? Can the 585.) It has never been doubted that either the Unitopinions and statements advanced in the report be sus-ed States, or the several States, had a clear title to all the tained? "That the pretensions of the Indians to be the owners of any portion of the soil, were wholly disregarded by the Crown of England." "That where there was no reservation of any part of the soil to the natives, they were left to be disposed of as the proprietors thought proper." "That one of the expedients of the colony was" merely "to appear to do nothing which concerned the Indians, either in the appropriation of their hunting grounds, or controlling their conduet without their consent. That this was the general principle of action, and that in all the acts, first of the colonies, and afterwards by the States, the fundamental principle that the Indians had no rights, by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either expressly or by impli cation." "That the Indian boundaries, defined by treaties, was merely temporary; that the practice of buying In-vious that it has no application to these tribes. There are dian titles is but the substitute which humanity and expediency have imposed, in place of the sword, in arriving at the actual enjoyment of property claimed by the right of discovery, and sanctioned by the natural superiority allow

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lands within the boundary lines described in the treaty, subject only to the Indian fight of occupaney, and that the exclusive power to extinguish that night was vested in that Government which might constitutionally exert it." Hence the conflicting claims of the United States and the individual States to unappropriated lands, which were finally adjusted by cessions from the latter to the former. But I do not propose to agitate or discuss that point My attention will be directed to the other propositions mecessary to be sustained by the advocates of the rights of the States.

If the Crown had a lawful right to exercise jurisdiction over the Indian tribes, without their consent, it must have been derived either from discovery or conquest,

As to the latter, (the right by conquest.) it is very ob

two reasons which would seem to be conclusive on this subject. One is, that no conquest was ever made of them; but if there ever was a right by conquest, it is very clear that it was surrendered by the Crown in the treaties which

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were made with them. In these compacts the Indians only to the King's right of sovereignty over the settlewere regarded as possessing the power to make them; ments, as English settlements, and over the inhabitants, they were treated as lawful and necessary parties to them; as English subjects, who carry with them the King's laws their claim to territory was acknowledged; boundaries wherever they form colonies, and receive his protection, were settled, and pledges given that no interruption, no by virtue of his royal charters. Here the true principle interference with their respective territorial limits, as set of the right to legislate is clearly stated. It is derived tled by these treaties, should be allowed. To assert an un- from the fact that the purchasers are English purchasers ;, limited right of sovereignty and legislation in the Crown, that the settlements consequent ou the purchase are by the force of conquest, is utterly inconsistent with the English settlements, who form colonies, carry with them: admitted necessity that the Indian tribes should conclude English laws, and receive protection by virtue of the pa treaties with the Crown, with the circumstances under tent from the Crown; and this part of the opinion seems which they were made, and with their explicit provisions. to have met with the approbation of the Supreme Court, Hence the Supreme Court say, after speaking of the wars In 1755, Counsellor Dagge, Sergeant Glyn, Dr. Frankbetween the whites and the Indians, that the law which lin, and Patrick Henry, gave written opinions in support regulates, and ought to regulate in general, the relations of the same principles. The lands conveyed by the Inbetween the conqueror and the conquered, was inappli- dian tribes were taken by the grantees, and held, subject cable to these Indian tribes. The resort to some new and only to the King's sovereignty over the settlements to be different rule, better adapted to the actual state of things, established thereon, and over the inhabitants as English was unavoidable. The one adopted was, as the Indians subjects. The transfer of the sovereignty to the Crown receded, the lands which they thus left unoccupied were of England was made by the same instrument whereby parcelled out and granted by the Crown; and as to those the land was conveyed, and was effectual to pass it, and of which they retained possession, the Indians residing on the title is under the protection of the laws of England. them were to be considered as occupants, to be protected while in peace, but to be deemed incapable of transferring the absolute title to others.

But it is not necessary to refer to English lawyers, or to times as remote as those just mentioned. The Supreme Court of the United States, whose decisions we ought to As to the existence of this right, as emanating from disregard as sound expositions of the law, have told us, in lancovery, it is contradicted by the best writers on interna-guage not to be misunderstood, what rights were acquired tional law, by the opinions of the most distinguished law- to this country by the discovery of it. yers and statesmen of Great Britain and this country, and In the case of Johnson vs. M'Intosh, the court say, the has been repudiated by the Supreme Court of the United

States.

principle adopted by the great nations of Europe, on the discovery of this continent, by which they should be mu tually regulated, was that discovery gave title to the Government by whose subjects or by whose authority it was made, against all other European Governments, which title might be consummated by possession. As a consequence, the nation acquiring the discovery obtained the right of acquiring the soil from the natives, and establishing settlements upon it.

The rights of the original inhabitants to complete sovereignty, as independent nations, were necessarily dimi nished. And why? Because it interfered with the fundamental principle, that discovery gave exclusive title, ultimate dominiou, subject to the Indian right of occupancy, to those who made the discovery.

The rights acquired by discovery, on the part of the nation making it, are simply the exclusive right to make purchases of the native tribes: to make settlements, and occupy in pursuance of purchases when made; and an ultimate right in fee, whenever the title of the Indians shall become extinet. And even these rights may be considered as peculiarly and solely confined to the relations subsisting between this country and the aboriginal inha bitants, and do not exist, and are not applicable to the case of any other community of native tribes. What is called the sovereign power of the nation discovering the country, consists in the particulars above mentioned. This attribute of sovereignty, the sole right of purchase and the ultimate ownership in fee, grows out of the fact of disco- The court say, the United States maintain, as all others very; and so far as it exists, it takes so much from the have maintained, that discovery gave an exclusive right to Sovereignty and independence of the Indian tribes. But extinguish the Indian title of occupancy, either by purthe power to legislate to extend its laws over the terri- chase or by conquest, and gave also a right to such a tory discovered is confined to its subjects when they make degree of sovereignty as the circumstances of the people purchases and settlements, and grows out of the obvious would allow them to exercise; or, as it is called, a limited principle that these subjects, purchasing, as they must, sovereignty over them. This sovereignty is not called with the consent of their own sovereign, when they re- absolute-unlimited-but a kind or degree of sovereignty, move and occupy the lands purebased, carry with them limited and confined, and when taken, as it should be, the laws under which they previously lived, and, in return secundum subjectam materiam, means nothing more than for the protection which they receive, as continuing sub-it existed so far and to such an extent as was necessary to jects of their sovereign, become amenable and subject to such legislative enactments as it may be deemed useful and expedient to make. The right to purchase is derived from the Crown; the right to occupy, from the purchase; and the subjection to the legislation of the Crown, from the union of these rights, connected with their national character, and the protection which their nation is bound to afford them. This power to legislate is a branch of the sanie power, which can lawfully make any municipal regulation a power over its own subjects settled ou territory purchased with their consent, and in regard to which it had the exclusive right of purchase.

preserve inviolate the exclusive right of purchase; or perhaps, as was said by Judge Johnson, (6 Cranch, p. 147,) the only limitation of the sovereignty of the Indians was the right in the States of governing every person within their limits, except themselves. It may further be observed, that in no instance did the Crown ever claim the right to legislate for the Indian tribes, except with their consent, and for their protection, against the encroachments of the whites.

I have thus endeavored to show that the Crown of England neither possessed nor claimed the right, as derived from discovery, conquest, or otherwise, to extend Let me solicit the attention of the committee to the sup-its laws over the Indian tribes. They were considered as port which these positions derive from judges, lawyers, and statesmen.

In 1757, Lord Camden and Mr. Yorke, the King's attorney and solicitor general, officially advised the Crown that the grants to the East India Company were subject

distinct nations or communities, sovereign and independent, excepting that the right to alienate at pleasure their lands was denied to them, possessing and actually exercising the powers of Government, through the medium of their own laws, usages, and customs; if this be so, then,

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by the declaration of independence and the treaty of peace, Georgia acquired no right to legislate over them, for the Crown did not possess it; and as was well observed by the Supreme Court, "Neither the declaration of independence, nor the treaty confirming it, could give the United States more than that which they before possessed, or to which Great Britain was before entitled."

Should it, however, be admitted that the view thus far taken of this subject is incorrect: that the Crown, while the States were colonies, possessed and exercised the unlimited right of sovereignty and legislation, and that the States succeeded to this right after the declaration of independence, I will ask the committee to follow me in an examination of this subject, under the constitution, and will endeavor to show that if the States had the power of legislation at any time, it was surrendered at the adoption of that constitution, and that that instrument contains a virtual prohibition to the States to extend their legislative enactments over the Indian tribes within their limits.

It should be premised that the right to legislate over these tribes, if it exist, is in its nature indefinite and unlimited; for, as it has its foundation in the sovereign power of the State, that sovereign power extends to the enactment of all laws to affect the Indian tribes, which could lawfully be made to operate upon its white citizens. And this seems to be the doctrine assumed in the report. The right to legislate is spoken of as growing out of the absolute sovereignty of the States within their territorial limits, and can of course have no limitation in respect to Indians, which it has not in regard to its white population. It must, therefore, be admitted, that if a State can legislate so as to affect the Indians at all, it can do so to the same extent as over its own citizens.

This unlimited power of legislation cannot exist, with out annihilating the Indian title to their lands. I have heretofore attempted to show what was the nature and extent of that title; a right to use and occupy forever; not to be defeated by legislation, but by cession or conquest only; and that this title was not acquired by permisBion, by treaty, by reservations, but by the original right of occupancy. What becomes of the enjoyment of this right, if a State can lawfully do as Georgia, Mississippi, and Alabama have done-pass laws, abolishing and declaring null and void all laws, ordinances, orders, regulations, usages, and customs of the Indian tribes within their limits? Cannot these States alter the mode of descent, the regulations of alienation, the rights of possession, as known and practised by the Indians? Cannot they impose taxes, aud subject their lands to the payment of them? Cannot they make legislative enactments, the necessary and inevitable effect of which will be to drive them from the occupation of their territory Did not the Secretary of War foresee this consequence, when he stated to the Cherokee delegation, that, in consequence of the power of Georgia to extend her legislative enactments over this nation, the only remedy for the nation was a removal beyond the Mississippi, where alone could be assured to it protection and peace; that while the tribes continue within the territorial limits of an independent State, they could promise themselves nothing but interruption and disquietude; that, beyond the Mississippi, there would be no conflicting interests; there the United States could say to them, the soil shall be yours, while the trees grow, or the streams run; but, situated where they now are, no such language could be held to them? What is the meaning of all this, but that, being subject to the legislation of Georgia, the occupancy of their territory would be disturbed; and that the consequence of their residing within the limits of a sovereign State would eventually be extermination? Let me read to the committee an extract from the speech of a distinguished Senator from Mississippi, lately deceased, [Mr. REED,] which I shall have occasion to use for another purpose hereafter, in the Senate of the

[MAY 18, 1830.

United Stares, in 1826: "He was entirely persuaded that so long as the tribes of Indians within any State of the Union were exempted from the operation of State laws, they never would consent to remove from the territory they occupy: until our legislation can in some form or other be brought to act on these people, or those resident among them, they will never consent to abandon their lands. So soon as our laws can reach those abandoned citizens, who settle among them, and become as savage as the Indians themselves, a powerful motive for their continuance will be removed. It is a first step in a system of removal; it is the first step in any system tending to a change of residence."

If one of the principles advanced in the report be correct, and the Indian title to their lands be what I have stated it to be, it wholly excludes State legislation. The committee say, speaking of the law of the State of New York: "It was not understood as introducing any new principle. It recognised the general principle, that territory and jurisdiction, considered in reference to a State or nation, are inseparable; that one is a necessary incident to the other; and that, as a State cannot exist without territory, the limits of that territory are, at the same time, the limits of its jurisdiction." Here the fundamental principle is asserted, that soil and jurisdiction are inseparable from each other. That the right to the soil, in a State, ez vi termini, includes a right of sovereignty or jurisdiction over it. Let an application be made of this doctrine to the Indian title. It has been shown that the title to the territory which they occupy, as against the State of Georgia, is practically an absolute title, and by the United States it has been solemnly guarantied to them. If so, then the attribute of sovereignty, said to be necessarily incident to the right of soil. attaches to it; for it can hardly be claimed, that what is a correct rule as applied to civilized nations, ought not to be applied to the Indian tribes. It would seem, therefore, to be a necessary consequence, from the positions taken in the report, that the Indians possess the right of sovereignty over their lands, if they are the owners of the lands; and I have endeavored to show, in a former part of this discussion, that they are the owners of the soil, for every practical purpose for which absolute ownership may be used.

Another objection to the right of legislation by the States, is derived from its non-user, (if the expression may be allowed,) by Georgia, at all times. It is now more than fifty years since the declaration of independence, and more than forty since the adoption of the constitution; and until within a little more than a year, no such right was ever claimed. Whence this silence? Whence this acquiescence in the legislation of the Federal Government? Whence these repeated and reiterated demands upon the Government to extinguish the Indian title? Does the doctrine so lately advanced, of State sovereignty, comport with the language of the report, that "it is understood Georgia will not attempt to appropriate the lands within the Indian reservations, without their consent?" Does it not look to the operation of State laws as a sure and speedy mode of extinguishing actual occupancy, if not of title? Has it not this for its object? For what other purpose can the State desire to legislate over them? Not to draw revenue from them; not to subject them to the performance of civil or military duties; not to make them citizens, and amalgamate them with their white population. The State can have no such objects in view. Can any other motive be assigned, than indirectly to force them to remove, by bringing the action of legislation to bear upon them? If such be the object, if the power existed, why was it never before claimed or exercised? Why was the Federal Government to extinguish the title, to purchase the right of occupancy? Can this long acquiescence, on the part of Georgia, in the exercise of self-government by the Cherokees, be accounted for in any other way

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