« AnteriorContinuar »
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 wbich, commissions on the same principle, the distinction between after mentioning that the Five Nations, iu 1791, bad pat infidel and christian nations. It is true that grants were their lauds under the protectiou 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, thougb 1726, had put their lands also under the same protection, in possession of the natives; or, as it has been sonetimes to be protected and defended by the said King, bis heirs said, of appropriating the lands occupied by the lodians. 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 vame to assure the said sionary interest, which they claimed, aud wbich they pro- vations that I am come by his Majesty's order to boild fessed to bave the power to convey. It was the right to such forts as shull 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. In the memorial delivered by the British minister to the The Indians were always “ admitted by the Crown to be French negotiator in 1755, (Juve,) be says: " Whatever the rightful occupants of the soil, with a legal as well as pretext might be alleged by France, in considering these just claim to retain possession of it, and to use it, accord countries asthe appurtenances of Cavada, it is a certain ing to their own discretion," and of whicb they could not truth that they have belonged, and, as they have not been be dis possessed by legislation, but by conquest or cessiun given up or made over to the English, belong still, to the oply.
same Indian nations. What the court of Great Britain I have said that the Indian title, thus explained, was maintains, what it insists upon, is, that the Five Nations of always and uniformly admitted by the Crown, the colo- the Iroquois are by origii, or by right of conquest, the dies, the States, the old confederation, and the Govern- lawful proprietors of the river Ohio, aod the territory jo ment of the United States since the adoption of the con question." stitution; and that it has received the sanction of the bigbest In May, 1755, Sir William Johnson said to the Six Najudicial tribunal of this country. I will ask the attention tiods: " Agreeably to the instructious I have received of the committee to the proof in support of this position from the great King your father, I will reinstate you in
In 1750, the Superintendent of Indian affairs informed the possession of your lands.” And again, in February, the Indians assembled at Mobile, in the name of the King. 1756: " The King will protect your country, and the that no encroachments should be permitted on their lamis : lands which your fathers conquered, and are of right and that all treaties made with them would be faithfully your territories, against all violeuce.” kept on the part of the Crown.
In August, 1760, Lord Amberst assured the Six Nations In September, 1763, by order of the King, instructious " that their lands should remain their absolute property." were sent to the Governor of the province of New York, In 1762, the commanding officer at Fort Pitt prohibited, to appoint commissioners, who, in conjunction with comby proclamation, any of the subjects of the King from missioners from other peighboring Governments in alliance settling west of the Alleghany mountains, that country with them, should make a treaty in his Majesty's name, having, by the treaty at Easton, in 1768, been allowed to with the Six Nations. In these instructions, it is stated, the Indians for their buuting grounds." 'that nothing may be wanting to couvince the Indiaps 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 inade 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 purchused by the Crown, was reserved their complaints, and to gratify thein by reasoyable pur- to the tribes of Indians who lived under the protection of chases, or in such other matters as you shall fiod most pro- the King, as their bupting ground. per and agreeable to them, for such lands as have been I will not detaio tbcommittee by quoting from the unwarrantably taken from them, and for such other as they proceedings ut what was called the Congress of Fort may bave a desire to dispose of." In Juue, 1754, pursu- Stanwix, in 1768 ; from the opinions of the learned in the ant to these instructions, commissioders met at Albaov, profession in England, of Dr. Frapklin, Patrick Henry, from the provinces of New York, New Hampshire, Mrissa- 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, vapia, 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, Virgioia and Canada were both quarelling about lands that all these distinguished men agreed is 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 absolate, both as to the manner bave entered on your lands. You did put this land under and the grapters, 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 otbers, he has directed The treaties made between Great Britain and the Chio. us to meet you here ; for although the land is under the kabaw and Choctaw Indians, at Mobile, 1765, and the King's Goveroment, yet the propriety or power of selling Upper and Lower Creeks, at Pepsacola, in May and Noi it to any of his Majesty's subjects, having authority from vember, 1766, all recognise the same right in these tribes, him, we always considered as vested in you. We ever did, which has beretofore becu stated : boundaries are estaand still do, acknowledge it to belong to you, although blished, and all the lands vot embraced withiu the limits within your father the King of Great Britain's dominion, which include what the Indians reserve to themselves, and and under tuis protection !” A treaty of alliance and de- which are declared in these treaties to belong to them, and fence was, at that time, made witb the Six Nations. in which they have full right and property, are grauted
In allusion to this treaty, the Governor of Penusylvacia, and coufirmed to the Crowo. 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 Englaod ever claiın 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 Eug- fullest exteut the necessity of extinguishing it, before the land."
lodjans could be deprived of their lands; and iu all their In April, 1755, General Braddock sent iqstructions to the acts, whether in the form of instructious, proclamations,
MAY 18, 1830.]
[H. of R. 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.
lands inbabited or claimed by the Indians without the Such being the relative situation of the Crown and the limits or jurisdiction of any particular State; and declaring Indian tribes, as to the lands occupied by them, let me all such purchases, without the express authority of Connow call the attention of the committee to the acts and gress, void. declarations of the colovies and States, particularly Geor In Oetober, 1783, Congress resolved that a convention gia, and it will be seen that the same principles were be held with the Indians in the northern and middle de. adopted, the same rights conceded to the Indians, avd partments, for the purposes of receiving them into the the same interest asserted to exist in the colonies and favor and protection of the United States, and for estaStates.
blishing boundary lines of property. Io June, 1779, the Assembly of Virginia resolved that la March, 1785, Congress resolved that a commission the commonwealth bad 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 cbariered Indians southward of them. And in June, 1786, Con. territory, 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 lo August, 1786, Congress passed an ordioance for the treaty with the Lower Creeks, in which he obtained regulation of Indian affairs, the preamble of which states cessions of lands from theni, aud in which it is declared that the safety and tranquility of the frontiers of the Unitthat though the_lands belong to them, (the Indians,) they ed States depend, in some measure, on the maintaining a will permit the English to use and possess a part of them, good correspondence between their citizeus and the seveand that the rest should remain to the Creeks forever. ral nations of Indians. This ordinance regulates the inter
In 1738, be made avother treaty with the assembled course with the tribes. States of all the Lower Creek pations, in which substan- In November, 1785, the treaty of Hopewell was made. tially the same provisions were inserted.
Its provisions need not be referred to. In 1769, avother treaty was made with the Catawba, It will be seen that all the acts of the continental Con. Cherokee, Choctaw, Chickasaw, aud Creek nations, in gress were predicated on the assumed basis tbat the Indian which cessions of land were made; and in May, 1773, tribes bad a just and legal right to the occupancy of their another treaty was made with the Cherokee and Creek lands, indefinitely, and that the only subsisting right of the batjous: by which bouudaries were established, and ces. Government to them was what had been heretofore stated sions made by the Indians.
--the exclusive right of purchase, and ultimate, contingent Io 1777, a treaty of peace was made between South right in fee. Carolina and the Cherokees. to which Georgia was a But the proceedings of the Government, after the adopparty, in which the commissioners of both States and the tion of the constitution, if valid, put an end to every quesCherokees exchanged their respective full powers, in tion regarding the title of the Indians. In the treaty of which a cession is made by the Cherokees of all the lands Holston, made with the Cherokees in 1791, the seventh eastward of the Upacaye mouutain, to the State of South article provides that the United States will solemnly Carolina, as having been acquired and possessed by that gunranty to the Cherokees all their lands not thereby State by couquest; and in the eighth article, it is declared ceded. When this treaty was transmitted to the Senate, that the batchet shall be forever buried, and there sball it was referred to a committee consisting of Mr. Hawkins, be a universal peace and friendship re-established be of North Carolina, Mr. Cabot, of Massachusetts, and Mr. tween South Carolina, including the Catu w ba and Georgia Sherman, of Counecticut who reported, among other on the oue part, and the Cherokee nation on the other ; things, that they had examined the treaty, and found it there shall be a general oblivion of injuries; the contract- strictly conformable to the instructions given by the Preing parties shall use their utmost endeavors to maintain sident of the United States, and that those instructions the peace and friendship now re-established ; and the were founded on the advice and consent of the Senate, Cherokees shall, at all times, apprehend and deliver to and that the Senate advise and consent to the ratification the commanding officer at Fort Rutledge, every person, of the treaty. Various other treaties with the same and white or red, who, in their nation or settlements, shall by with other tribes contain a similar provision ; and if these aby means endeavor to instigate a war by the Cherokee treaties have any binding force, it is needless to inquire pation, or hostility or robbery by any other people, against what were the rights of the Indians before the conclusion or upon any of the America States, or subjects thereof. and ratification of these treaties, or what were the rights Can Georgia enter into a treaty with ber own citizens of the Government. These solemn compacts contain a give peace to those who are not enemies, but traitors !
promise of security in possession of their lands, and give In 1783. another treaty was made between the State of them a title, if they had not one before. How far it was Georgia and the Cherokee dation, by which peace was es- competent for the United States to enter into these stiputablished, and a pernianent boundary was established. lations, I shall bot, in this stage of the discussion, inquire.
It is unnecessary to go further. The acts of Georgia That I shall consider, when I refer to them, as conclusive furnish unequivocal evidence of her acquiescence in the lo show that the States are excluded from making any doctrive that the Jodian tribes within ber territorial legislative enactments to affect them. limits, of right, might maintain the unmolested occupation I have now considered the nature and extent of the Inof their lands.
dian title as recognised by the Crown, the colonies, the I will now advert to the acts and declarations of the con- Suntes, the continental Congress, and the United States, federated States, and it will be seen that they entirely co- since the adoption of the coustitution. On the subject of incided, on the subject of the Indian title, with the princi- this title, it only remains for me to show, as I promised to ples assumed and acted on by the Crown and the colonies. do, that the title, as thus acknowledged, bas received the
In January, 1776, Congress resulved that no person sanction of the judicial department of this Government. shall be permitted to trade with the Indians, without In Fletcher vs. Peck, (6 Cranch, pp. 142–3.) it is said: license from one or more of the commissioners of each " The majority of the couit is of opinion that the nature of respective department.
the ludian title, which is certainly to be respeoted by all lu September, 1783, a proclamation was issued by the loourts until it be legitimately extinguished, is not such as
H. OF R.]
Removal of the Indians.
(May 18, 1830.
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 bad no permanent interest in their bunting grounds.” “ That be seized in fee, because the State bus the ultimate domi. treaties were but a mode of government, and a substitute pion—the right expectant upuu the determination of the for ordioary legislation, which were from time to time dis estate in the Indians. So long as the Indians occupy, the peosed 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 essere is only in the event that the occupancy ceases, or the right tial point in the policy of Georgia was, that the Inclian to occupy becomes extinct, that the ultimate right of the reservations should be gradually contracted within such - State can be enforced. Judge Jobuson, in the same case, reasonable limits, that no part of the country should con(pp. 146-7,) says, the Indians have the absolute proprie- tioue 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 soil, 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 upup 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 arts, and by judicial determinations. give to this subject a great degree of attention, and to in- Having thus disposed of the question, what is tbe nature vestigate, ascertain, and declare the nature and extent of and extent of the Indian title to the lands which they octhe Indian title. This was done in 1823 ; and the case of cupy, and having showo, I bope, that it is one which, for Johnson vs. McIntosh (8 Wheaton) furnishes us with the all pracical purposes
, is absolute, and limited only by the result. In that case, the Chief Justice, deliveriug 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 iuquire admitted to be the rightful occupants of the soil, with a into and answer the question, have the states in whieh legal as well as just claim to retain possessiou of it, and to these tribes reside the power to extend their legislative use it, according to their own diecretion. While the dif- enactments orer 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 bave 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 cop. soil while yet in the possession of the natives. These viction that no such power ins 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 wbile the or the several States, had a clear title to all the lands United States were colonjes; that, by the declaration of indewithin the boundary lines described in the treaty, subject peodence, 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 Governinent, wbich 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 posuession has never been ques constitution under which that Government is foun led. 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 pripositions 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 all 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 indepeodent of thie Crown. To say the of the Supreme Court, can it be doubted that the title of least, it migbt be contended, with some plausibility, that the lodinu 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 citizeo of and afterwards in the Government formed under the cod
this country to the farm on which he lives, and which bas stitution, rather than in the individual Sates. Hence the descended to bim after having been in the occupation of cautious remark of Chief Justice Marshall, (8 Wheaton, father and sou from generation to generation ! 'Can the 585.) “ It has dever been doubted that either the Unitopinions and statements advanced in the report be sus- ed States, or the several States, hnd a clear title to all the "tained ! " That the pretensions of the Indians to be the lands within the boundary lwes described in the treaty, owners of any portion of the soil, were wholly disregarded subject only to the Indian right of occupaney, and that the by the Crown of England." "That where there was no exclusive power to extinguish that night was vested in that reservation of any part of the soil to the gatives, they were Governmeut which might constitutionally exert it." Hence Jeft to be disposed of as the proprietors thought proper." the conflicting claims of ibe United States and the indivi." That one of the expedients of the colony was" merely dual Siates to uvappropriated lands, whieli were finally "to appear to do noihing which concerned the Indians, adjusted by cessions from the latter to the foriner. But either in the appropriation of their hunting grounds, or I do not propose to agitate or discuss that point My atcontrolling their conduet without their consent. That this tention will be directed to the other propositions peceswas the general principle of action, and that in all the acts, sary to be sustained by the advocates of the rights of the first of the colonies, and afterwards by the States, the fun- States. damental principle that the Indiaus bad no rights, by virtue If the Crown had a lawful right to exercise jurisdiction of their ancient possession, either of soil or sovereignty, over the Indian tribes, without their consent, it must bave has never been abandoned, either expressly or by impli been derived either from discovery or conquest cation." * That the Indian boundaries, defined by treaties, As to the latter, (the right by conquest,) it is very obwas merely temporary ; that the practice of buying In- vious that it has no application to these tribes. There are diao titles is but the substitute which humanity and expe two reasons which would seem to be conclusive on this dieney bave imposed in place of the sword, in arriving at subject. One is, that po civiquest was ever made of them; the actual enjoyment of property claimed by the right of but if there ever was a right by couquest, it is very clear *discovery, and savetioned by the natural superiority allow that it was surrendered by the Crowo.in the treaties which
MAY 18, 1830.]
Removal of the Indians.
[H. OF R.
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 Euglish 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 uckpowledged; boundaries wberever they formi colonies, and receive bis protection, were settled, and pledges given that no interruption, no by virtue of bis 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 purchusers are English purchasers ;, limited right of sovereignty and legislation in the Crown, that the settlements consequent on the purchase are by the force of conquest, is uiterly 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 wheh 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 Glyo, 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 ludian tribes. The resurt 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, establisbed thereon, and over the inhabitants as English was Quavoidable. 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 tbose 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 But it is not necessary to refer to English lawyers, or to while in peace, but to be deemed incapable of transferring times as remote as thuse just mentioned. The Supreme the absolute ritle to others.
Court of the United States, whose decisions we ought to · As to the existence of this right, as emadating from dis regard 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 Jo the case of Jobpsop vs. M'Intosh, the court say, the hns been repudiated by the Supreme Court of the United principle adopted by the great vations of Europe, on the States.
discovery of this continent, by wbich they should be mų. The rights acquired by discovery, on the part of the tually regulated, was that discovery gave title to the Gonation making it, are simply the exclusive right to make vernment by whose subjects or by whose authority it was purchases of the native tribes : to make settlements, and made, against all other European Governments, which title occupy in pursuance of purchases when made; add an might be consummated by possession. As a consequence, ultimate right in fee, whenever the title of the Indians the nation acquiring the discovery obtained the rigbt of shall become extinet. And even these rights may be con- acquiring the soil from the natives, and establishing setsidered as peculiarly and solely confined to the relations tlements upon it. subsisting between this country and the aboriginal inha- The rights of the original inbabitants to complete sovebitants, and do not exist, and are not applicable to the ease reignty, as independent nations, were necessarily dimiof any other community of native tribes. What is called bished. And why? Because it interfered with the fuodathe sovereign power of the nation discovering the country, mental principle, that discovery gave exclusive title, ulticonsists ju the particulars above mentioned. This attri- mate dominiou, subject to the Indian right of occupancy, bute of sovereignty, the sole right of purchuse and the ul to those who made the discovery. timate 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 bave 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 sovereiguty as the circumstauces 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, sovereigoty over them. This sovereignty is not called with the consent of their own sovereigu, 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 preserve inviolate the exclusive right of purchase ; or persuch legislative enactments as it may be deemed useful and baps, as was said by Judge Johnson, (6 Cranch, p. 147,) expedient to make. The right to purchase is derived from the only limitation of the sovereignty of the Indians was the crown; the right to occupy, from the purcbase; and the right in the States of goverving every person within the subjection to the legislation of the Crown, from the their limits, except themselves. It may further be ob*Union of these rights, connected with their national charac served, that in po instance did the Crown ever claim the ter, avd the protection which their pution is bound to af- right to legislate for the Indian tribes, except with their ford them. This power to legislate is a branch of the consent, and for their protection, against the encroachments sanie power, which can lawfully make any municipal re- of the whites. gulation a power over its own subjects settled ou territory I bave thus endeavored to show that the Crown of purchased with their consent, and in regard to which it England neither possessed nor claimed the right, as dehad the exclusive right of purchase.
rived from discovery, conquest, or otherwise, to extend Let me solicit the attentiou of the committee to the sup- its laws over the Indian tribes. They were considered as port which these positions derive from judges, lawyers, distinct nations or communities, sovereign and indepenand statesmen.
dent, excepting that the right to aliepate at pleasure their In 1757, Lord Camden and Mr. Yorke, the King's attor- lands was denied to them, possessing and actually exerney and solicitor general, officially advised the Crown cising the powers of Government, through the medium of that the grapts to the East India Company were subject their own laws, usages, and customs ; if this be so, thieu, H. OF R.]
Removul of the Indians..
(May 18, 1830.
by the declaration of independence and the treaty of United Stares, in 1826: "He was entirely persuaded that peace
, Georgia acquired do right to legislate over them, so long as the tribes of Indians within any State of the for the Crown did not possess it ; and as was well observ- Union were exempted from the operation of State laws, ed by the Supreme Court, “ Neither the declaration of in- they never would consent to remove from the territory dependence, por the treaty confirming it, could give the they occupy: until our legislation can in some form or United States more than that wbich they before possessed, other be brought to act on these people, or those resident or to which Great Britain was before entitled."
among them, they will never consent to abandon their Should it, however, be admitted that the view thus far lands. So soon as our laws can reach those abandoned taken of this subject is incorrect : that the Crown, while citizeos, who settle among them, and become as savage as the States were colonies, possessed and exercised the up- the lodiaps themselves, a powerful motive for their conlimited right of sovereiguty and legislation, and that the tipuauce will be removed. It is a first step in a system States succeeded to this right after the declaration of in- of removal; it is the first step in any system tending to a dependence, I will ask the committee to follow me in an change of residence." examination of this subject, under the constitution, and If one of the principles advanced in the report be corwill endeavor to show that if the States had the power of rect, and the Indiau title to their lands be what I have legislation at any time, it was surrendered at the adoption stated it to be, it wholly excludes State legislation. The of that constitution, and that that instrument contains a committee say, speaking of the law of the State of New virtual prohibition to the States to extend their legislative York : " It was not voderstood as introducing any pew enactments over the Indian tribes within their limits. principle. It recognised the geveral privciple, that terri
It should be premised that the right to legislate over tory and jurisdictiou, considered io reference to a State or these tribes, if it exist, is in its nature indefinite and upli- nation, are inseparable; that one is a necessary incident to mited; for, as it has its foundation in the sovereign power the other; and that, as a State cannot exist without territoof the State, that sovereigo power extends to the enact- ry, the limits of that territory are, at the same time, the ment of all laws to affect the Indian tribes, which could limits of its jurisdiction." Here the fundamental prineiple lawfully be made to operate upon its white citizens. And is asserted, that soil and jurisdiction are inseparable from this seems to be the doctrine assumed in the report. The each other. That the right to the soil, in a State, et ri right to legislate is spoken of as growing out of the abso. termini, includes a right of sovereignty or jurisdiction lute sovereignty of the States within their territorial over it. Let an application be made of this doctrine to the limits, and can of course bave no limitation in respect to Indian title. It has been shown that the title to the terrie Indians, which it has not in regard to its wbite population. tory which they occupy, as against the State of Georgin, is It must, therefore, be admitted, that if a State can legis- practically an absolute title, and by the United States it late so as to affect the Indians at all, it can do so to bas been solemnly guarantied to them. If so, then the the same extent as over its own citizens.
attribute of sovereignty, said to be necessarily incident to This unlimited power of legislation cannot exist, with the right of soil. attaches to it; for it can hardly be claimed, out annihilating the Indian title to their lands. I have that wbat is a correct rule as applied to civilized nations, beretofore attempted to show what was the nature and ought not to be applied to the Indian tribes. It would extent of that title; a right to use and occupy forever; seem, therefore, to be a necessary cousequence, from the not to be defeated by legislation, but by cession or con- positions taken in the report, that the Indians possess the quest only; and that this title was not acquired by permis- right of sovereiguty over their lands, if they are the owners Bion, by treaty, by reservations, but by the original right of the lands; and I have endeavored to show, in a former of occupancy. What becomes of the enjoyment of this part of this discussion, that they are the owners of the right, if a State can lawfully do as Georgia, Mississippi, soil, for every practical purpose for which absolute owner and Alabama bave done--pass laws, abolishing and declar- ship may be used. ing null and void all laws, ordinances, orders, regulations, Another objection to the right of legislation by the usages, and customs of the Indian tribes within their limits ? States, is derived from its non-user, (if the expression may Cannot these States alter the mode of descent, the regu- be allowed,) by Georgia, at all times. It is now more than lations of alienation, the rights of possession, as known fifty years since the declaration of independence, and and practised by the Indians ! Cannot they impose taxes, more than furty since the adoption of the constitution; and aud subject their lauds to the payment of them i Cappot until within a little more than a year, do such right was they make legislative eyactments, the necessary and ine- ever claiined. Whence this silence Wbence this aevitable effect of which will be to drive them from the quiescence in the legislation of the Federal Government ? occupation of their territory? Did not the Secretary of Whence these repeated and reiterated demands upon the War foresee this consequence, when he stated to the Che Government to extinguish the Indian title ! Does the doc rokee delegation, that, in consequence of the power of tripe so lately advanced, of State sovereignty, comport Georgia to extend her legislative enactments over this with the language of the report, that "it is understood pation, the only remedy for the nation was a removal be- Georgia will not attempt to appropriate the lands within yond the Mississippi, where alone could be assured to it the Indian reservations, without their consent?”. Does it protection and peace; that while the tribes continue within not look to the operation of State laws as a sure and the territorial limits of an independent State, they could speedy mode of extinguishing actual occupancy, if not of promise themselves nothing but interruption and disquiet- title i Has it dot this for its objeet ? For what other purude; that, beyond the Mississippi, there would be no con- pose can the State desire to legislate over them? Not to flicting interests; there the United States could say to draw revenue from them; not to subject them to the per: them, the soil shall be yours, while the trees grow, or the formance of civil or military duties; not to make them cistreams run; but, situated where they now are, no such tizens, and amalgamate them with their wbite population. language could be held to them. What is the meaning The State can have no such objects in view. of all this, but that, being subject to the legislation of other motive be assigned, than indirectly to force them to Georgia, the occupancy of their territory would be dis. remove, by bringiog the action of legislation to bear upon turbed; and that the consequence of their residing within them? If such be the object, if the power existed, why the limits of a sovereign State would eventually be exter- was it never before claimed or exercised? Why was the mination! Let me read to the committee an extract from Federal Government to extinguish the title, to purchase the speech of a distinguished Senator from Mississippi, the right of occupancy? Can this long acquiescence, on Jately deceased, [Mr. Rued,] which I shall have occasion the part of Georgia, in the exercise of self-government to use for another purpose bereafter, in the Senate of the by the Cherokees, be accounted for in any other way