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moving, so far as it depends upon them, the before-mentioned impediment to its final conclusion," &c. did, therefore, authorize the delegates of New-York, "to limit and restrict the western boundaries of that State, by such line or lines, and in such manner and form, as they shall judge to be expedient, either with respect to the jurisdiction as well as the pre-emption of soil, or reserving the jurisdiction in part, or in the whole, over the lands which may be ceded or relinquished, with respect only to the right or pre-emption of the soil." This act further ordained, that the territory thus ceded, "should be and enure for the use and benefit of such of the United States, as should become members of the federal alliance of the said States, and for no other use or purpose whatsoever." In September, 1780, Congress recommended to the States, a liberal surrender of a portion of their territories; and on the 10th of October following, declared, that the territories which might be thus ceded, "should be disposed of for the common benefit of the Union, and formed into republican States, with the same rights of sovereignty, freedom and independence, as the other States; and that the expense incurred by any State since the commencement of the war, in subduing any British posts, or in maintaining and acquiring the territory, should be reimbursed." In compliance, with this recommendation, the State of Virginia, on the 2d of January, 1781, ceded to the United States, all her lands to the north-west of the river Ohio. On the 1st of March, 1781, about two months after the cession by Virginia, Maryland, the only State which had until then withheld its signature from the Articles of Confederation, authorized its delegates in Congress to subscribe them. Georgia not having then ceded any of her territory to the Union, retained these rights to it, which she possessed, when independence was declared, the confederation having in no manner affected them. Should this be doubted, the question would be set at rest by a mere reference to the second of the Articles of Confederation, and to the proceedings of Congress, after their ratification. By the second of the Articles of Confederation, "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated. to the United States, in Congress assembled." On the 2d of November, 1782, a committee of Congress reported, "that they had had a conference with two deputies of the Catawba nation of Indians; that their mission respects certain tracts of land reserved for their use in the State of South-Carolina, which they wish may be so secured to their tribe, as not to be intruded into by force, nor alienated with their own consent."

Whereupon resolved, "that it be recommended to the Legislature of the State of South-Carolina, to take such measures for the satisfaction and security of the said tribe, as the said Legislature shall, in their wisdom, think fit."* On the 15th of October, 1783, Congress resolved, that all civil ànd military officers, particularly all commissioners or agents, should be prohibited from purchasing lands from the Indians, except by the license of the United States, with an express reservation, that "their resolution should not be construed to affect the territorial claims of any of the States, or other legislative rights within their respective limits."+ On the 7th of August, 1786, Congress passed a general ordinance upon Indian affairs, from which the following is extracted :—

"Congress have the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians, not members of any of the States, provided, that the legislative right of any State, within its own limits, be not infringed or violated."‡

These resolutions acknowledge the territorial claims and legislative rights of the States, within their respective limits. As late as the 20th of October, 1787, Congress resolved

"That it be, and hereby is represented to the States of North-Carolina and Georgia, that the lands which have been ceded by the other States, in compliance with the recommendation of this body, are now selling in large quantities for public securities; that the deeds of cession from the different States have been made without annexing an express condition, that they should not operate until the other States, under like circumstances, made similar cessions; and that Congress have such faith in the justice and magnanimity of the States of North-Carolina and Georgia, that they only think it necessary to call their attention to these circumstances, not doubting but, upon consideration of the subject, they will feel the obligations which will induce similar cessions, and justify that confidence which has been placed in them."

On the 1st of February, 1788, Georgia did offer to cede a part of her western lands to the United States, upon certain conditions: these conditions not being accepted, the cession was not made. Congress expressed its reasons for not accepting, the cession upon the terms proposed, without pretending to any right in, or jurisdiction over the territory. But says the Report, Congress in accepting cessions from the States, did not "admit that without them, the confederacy would have possessed no title to the unoccupied lands." It would have been supererogatory in Congress to have made that admission. It repeatedly recognized the rights of the States to the lands within their limits.

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* Indian Treaties and Laws, p. 428. Ibid. pp. 435, 436. ‡ Ibid. p. 442.

It in no instance demanded them as its property. It could have produced no title to them. It earnestly, and at several times, recommended to the States, to make cessions of their lands to the United States, for the common benefit, never, in the most indirect manner, setting up any claim to them. Would cessions be recommended, where the right to demand existed? If Congress had the right, impelled by the imperious necessities which it frequently and forcibly urged, when its recommendations were disregarded, would it not have been bound in duty to resort to measures of coercion? Were any of the cessions made to Congress other than purely voluntary? From the declaration of Independence to the present day, has Congress, in a single instance, claimed any part of the lands of those States which were parties to the confederation, notwithstanding many sales of them have been made to individuals in fee-simple, and many voluntary cessions of them to Congress, subject to a variety of conditions? Did not some of the States reject the confederation, because no provision was inserted in it for the appropriation of the unoccupied lands to the common benefit of the Union? And did not these States afterwards accede to the confederation, although it contained no such provision? Did not their refusal to become members of the confederation, unless the unoccupied lands were conveyed to the United States, manifest, that they did not consider them as belonging to the United States, without the cession of the several States? and did not the 9th of the Articles of the Confederation declare, "that no state shall be deprived of territory for the benefit of the United States ?" Were the territorial rights of the States ever expressly delegated to the United States, without which, in the language of the 2d of the Articles of Confederation, they were retained by the States?

It is asserted in the Report, that the difficulties relating to the unoccupied lands were settled under the confederation by compromise. When was the compromise made? Where is the evidence of it to be found? Who were the parties to it? What were its terms? We believe that none of these questions can be satisfactorily answered. Contemporaneous history informs us that the controversy ceased, not that it was compromised: that some of the States made voluntary cessions of portions of their territory to Congress, whilst others refused to make any; and that those States which did not cede, remained in the undisputed possession of the fee-simple in and the jurisdiction over all the unoccupied lands within their boundaries when independence was declared. Where the fee-simple in, and the jurisdiction over lands belong to a State, and a mere right of occupancy in them is granted to Indians, it seems to us to be a proposition too

evident to require illustration, that this right cannot be transferred to whomsoever the occupant pleases. It is in its nature altogether personal, to be enjoyed by the tribes entitled to it, who can no more convey it, arbitrarily, than could the representatives in Congress, or the judges of the Supreme Court assign over their offices and the discharge of their duties, to individuals of their selection. The right of occupancy may be abandoned, or it may be extinguished: in either case, the absolute, unincumbered fee would vest in the State, for it could vest no where else. The fee-simple and the jurisdiction being in a sovereign State, no other government could interpose. In the case of Fletcher and Peck, the Supreme Court said,—

"That the Legislature of Georgia, unless restrained by its own Constitution, possesses the power of disposing of the unappropriated lands within its own limits, in such manner as its own judgment shall dictate, is a proposition not to be controverted. That the particular land stated in the declaration appears, from this special verdict, to lie within the State of Georgia, and that the State of Georgia had power to grant it.” 6 Cranch's Rep. pp. 128, 142.

The grant alluded to was made by the State of Georgia in fee-simple, subject to the Indian right of occupancy. In Johnson and M'Intosh,* the main question was, whether Indians could give, and individuals receive from them, a title to land; and the decision was in the negative upon both of these points. The language of the Court was

"If an individual might extinguish the Indian title for his own benefit, or in other words might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory and is held under them, by a title dependent upon their laws. The grant derives its efficacy from their will, and if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interfere for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds his title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a parti cular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, as it might still be conquered from or ceded by his tribe, we can perceive no legal principle which will autho

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rize the court to say, that different consequences are attached to this purchase, because it was made by a stranger.”—Ib. p. 593.

These decisions of the Supreme Court accord with what we have stated, excepting that they do not directly determine, whether the right of extinguishing Indian occupancy belongs to the United States or to the State. We are unable to form an idea of a sovereign State, which has not the power of legislating upon all matters within its jurisdiction. If another government can interfere in such jurisdiction, without the consent of the State, the State cannot be sovereign. Georgia is a sovereign State. Putting then out of view how far her sovereignty might have been impaired by the confederation, (which we have already considered) or may be impaired by the Federal Constitution, (which we shall hereafter consider) her right to legislate, exclusively upon the Indian title to lands within her limits, we apprehend, can, with no greater plausibility, be controverted, than her exclusive right to legislate concerning the mode in which the title to real property in the State may be acquired or relinquished by her citizens. Where a right is possessed, as a general rule, the means of perfectly enjoying it, are incidentally annexed to it. If the power of aliening in fee, were in one government, and of extinguishing the right of occupancy in another, both might be prevented from reaping the full benefit of their power The State having the fee, could by no act of its own obtain the possession of the soil, notwithstanding the willingness or the desire of the occupants to part with it for an adequate consideration. The United States having the right to extinguish the occupancy, might refuse to exercise it. In exercising it, they could not choose a purchaser, for the occupancy could not be purchased; and so soon as it should be extinguished, the possession, with the fee-simple, would devolve upon the State. This division of power is both inconvenient and unnatural. The State seized in fee, is strongly interested in the extinguishment of the Indian title, and would be more likely to effect it, than the United States, having no interest, and which may never aid the State in the accomplishment of its wishes. No obligation to extinguish Indian title in a State is imposed upon the United States by the Constitution: a State, therefore, if the power be in the United States, however urgent might be its inducements for the extinguishment of the title, would be utterly remediless. Although the cases of Fletcher and Peck, and of Johnson and M'Intosh have not directly determined that a State can extinguish the Indian occupancy, yet a careful perusal of them will convince any one, that the inference in favor of this power being in the State,

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