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“■Xlic ferment of a free, is preferable to the torpor of a despotic, Gorernmeht,”
VOL. T.
ATHENS, GEO. SATURDAY. AVGUST 20, 1836.
NO. 22.
©onamss.
Reuiarks of Mr. Haynes,
OF GEORGIA,
In the House of. Representatives, June 27,
1830, the resolution calling on the Presi
dent of the United States for information rel
ative to the treaty lately concluded with the
Cherokee Indians being under consideration
Mr. Haynes rose and said :
Mr. Speaker,
1 had hoped that I should never again he in.
volved in a general discussion of the Indian
question ; but the allegations, violent gratui.
tous’and unjust, which have heecn preferred
against the State of which l have the honor
to be a representative, by an honorable mem.
her from Massachusetts, (Mr. Adams,) make
it my solemn duty to repel the assault, and
to roil it back upon the assailant. I regret,
sir, exceedingly, that the honorable gentle
man, whatever may have been his motive,
(and that motive 1 shall not now attempt to in.
vestigate,) should have thought it necessary,
in the discussion of a bill providing for the
faithful performance of the treaty with the
Creek Indians of the 24th March, 1832, to
revive the exploded charges of injustice and
oppression on the part of Georgia towards
(hose Indians. Before proceeding to the dis-
cussion of the subject, I may be permitted to
say, that the regret expressed by the honora.
ble gentleman, reminded me strongly of the
occasion on which he uttered the same sen
timent, because he could not again throw
hack upon the people the choice of Chief
Magistrate. As this historical reminiscence
was involuntary, I trust tho Committee will
bear with me for expressing it, not intending
to inquire into his motive at the one time or
the other. It is impossible to do justice to
the defence in which I have been, most reluc.
tnntly, involved, without presenting a brief
outline of the political history of this country,
in its colloidal, revolutionary, and present
state. The Colonies, which ufterwards became
the original thirteen States of this Union, were
either settled, or acquired, by the Government
or people of Great Britain. Deriving their
origin principally from a common ancestry,
similar institutions were common to them all.
Among the number, Georgia, as is well known
to every one familiar with American history,
was the last Colony planted by tho mother
country.
In all the charters granted by Great Brit-
ilia to the Colonics, the principle was assum
ed, if not directly expressed, of the absolute
right of the colonizing nation, both to soil and
jurisdiction, of the countries thus colonized,
it may, perhaps, have been heretofore con.
tended, that the question of limits between the
European discoverers of this continent had
no reference to their right of soil or jurisdic.
lion, in respect to the aboriginal inhabitants
But the slightest examination of the Colonial
charters will dissipate such an assertion in a
moment. In no one instance, is- it believed
didthe government or colonistsof Great Britain
base their right to settle this continent on the
previous permission of its original possessors
Not intending to trouble the House any Ion
gcr than may be indispensable to the perfor-
mancc of my present duty. I forbear such re
ferences to the Colonial charters as would
clear my position of the slightest reasonable
doubt. Tho Colony of Georgia, then, was
placed on the same footing with her cider
sisters in respect to tho right of her people to
a residence on this continent. As there were
aboriginal inhabitants in all the original Colo,
nies, it become necessary at an early period
of the existence of those Colonies, to estab.
lish some general principle of action towards
them. And it is believed by the present spea
ker, that the principle generally adopted by
the Colonies on that suhject cannot be better
illustrated than by reference to the doctrine
said to hnvo been delivered by a distinguish
ed citizen of Massachusetts, on the anniver
sary commemoration of the landing of the
pilgrims at Plymouth, in Massachusetts, on
22d day of Dec. 1802. That distinguished
individual is reported to have said, on the oc-
casion referred to, that «tho Indian right of
possession itself stands with regard to the
greatest part of the country, upon a question-
able foundation. Their cultivated fields, their
constructed habitations, a space of ample suf.
ficiency for their subsistence, and what they
had annexed to themselves by their personal
labor, was undoubtedly, by the laws of nature,
theirs. But what is the right of a huntsman
to the forest of a thousand miles, over which
he has accidentally ranged in quest of prey ?
Shall the liberal bounties of providence to the
race of man be monopolized by one of a thou
sand for whom they were created? Shall
the exuberant bosom of the common mother,
amply adequate to the nourishment of millions,
be exclusively claimed by afew hundred of her
offspring? Shall the lordly savage not only
disdain the virtues and enjoyments of civiliza
tion himself, but shall he control the civilization
of the world ? Shall he forbid tho wilderness to
blossom like tho rose? Shall he forbid the
oaks of the forest to fall before the axe of in
dustry, and rise again transformed into the
habitations of ease and elegance ? Shall he
doom an immense region of the globe to pet-
petual desolation, and to hear the howling of
the tiger and the wolf silence forever the
voice of human gladness ? Shall the hills
and valleys which a beneficent God has form
ed to teem with the life of innumerable mul-
jitudes, be condemned to everlasting barren-
hess? Shall the mighty rivers, poured out
.by the hands of nature* as channels of com-
munic&tion between numerous nations roll
their waters in sullen silence and eternal sol
itude to the deep ! Have hundreds of com
modious harbors, a thousand leagues of coast,
and aboundless ocean been spread in front of
this land, and shall every purpose of utility to
which they could apply be prohibited by the
tenant of the woods ? No, generous philan-
thropists ! Heaven has not thus placed at ir-
reconcilable strife its moral laws with its p'hy-
sical creation !”
Could the principle which regulated the
Colonies from their earliest day of strength,
and beyond which Georgia has never gone,
have been more forcibly expressed, or elo-
quenlly illustrated, than in what I have just
quoted ? Can it be that in such wide sweep-
mg assertion of collonial right, the mind of
the orator had narrowed its vision to the hor-
rizon of New England, and the defence of
his own puritan ancestors? Who, that has
heard the announcement of such a principle,
could for a moment imagine that the mind
which had adopted, and the tongue which ex
pressed it with such eloquence and force,
should now utter unmeasured denunciation
against Georgia for having acted short of the
extent of his own principle ? That principle,
if his illustrations are entitled to any weight,
goes the whole length, not only of tho forci
ble dispossession of the savage of every thing
but his home and little spot of cultivation, to-
gether with such personal trifles as his labor
has appropriated, but sanctions his entire re
jection from it all. But it is not here neces-
sary to dwell longer on the abstract doctrine
of the honorable member ftom Massachusetts,
I Mr. Adams,) ns contained in his anniversary
oration at Plymouth in 1802.
1 shall now turn my attention, after a word
or two upon the subeet of . the territorial lim
its created and established by the several
collonial charters of the old thirteen States,
and as confirmed by various public acts since
the commencement of the revolution, to the-
manner in which various Colonics, particular,
ly those in the middle and northern portions
of this country, carried out the doctrine main
tained by the honorable gentleman in 1802,
in their legislative enactments for the govern
ment of the Indian tribes within their several
limits. In proof of this assertion it is only
necessary to advert to tho statutes of a ma-
jority of the colonies on this this subject.—
That Massachusetts considered Indians only
entitled to the land improved and inhabited by
them, is shown by a colonial law of 1633,
“ For settling the Indians’ title to lands in this
(that) jurisdiction,” in which it is enacted,
That what Ends any of the Indians indians
in this juridiction have possessed and improv.
ed, by subdueing the same, they have just
right unto.”
“ And be it further Ordered by this Court
and the authority thereof, and be it hereby en
acted, That all that tract of land within thi9
jurisdiction, whether already granted to any
English plantations or persons, or to be gran-
ted by this Court, (not being under the quali-
fication of right to the Indians,) is and shall
be accounted the just right of such English
os already have, or hereafter shall have grant
of lands from this court, and the authority
thereof.” Various other acts were passed
by the Colonial Legislature of Massachusetts
from the year 1633 downwards to 1747, in no
one of which is the jurisdiction entire and
complete pver all the rights of the Indians be
lieved to have been in any manner relinquish
ed, restrained or diminished. Being neces.
sarily obliged to go over a great deal of ground
for the complete vindication of Georgia, the
foregoing evidence from the collonial laws of
Massachusetts is deemed sufficient to show
that she claimed perfect and . entire sover-
eignty over all the Indians and Ind!*.n lands
within her limits. Next in order of time, I
come to the collonial legislation of Virginia.
So early as the year 1658, 1 find in her re-
cords the following provision : “•Beit hereby
ordained and enacted, That all the Indians of
this Colony shall, and may keep those seates
of land which they now have; and that no
person or persons whatsoever be suffered to
entrench or plant upon such places as the
said Indians claim or desire, until full leave
from the Governor and councillor commis
sioners for the place.” Several other laws
regulating Indinn affairs, were passed at dif-
ferent times, between the years 1658 and
1705, inclusive, by the Collonial Legislature
of Virginia; but the extract just presented
will suffice to show that the Colony claimed
and exercised entire jurisdiction over the In
dians within her limits. In the year 1663,
the Colony of Rhode Island seems first to
have exercised jurisdiction over Indians ; and
from tho tenor of her enactment in that year,
in regard to their lands, and the act of 1696,
for restraining and governing their persons,
she seems to- have exercised as unlimited
control over them, ns she could have done
over her white inhabitants. By the act of
1663, it is ordained, •• that no person or per-
sons, for the future, shall purchase any lands
or Islands within this Colony, of or from the
native Indians within the same, but such only
as are allowed to do so by .the General Assem-
bly, upon penalty of forfeiting all such lands
or islands so purchased to the Colony.” By
an act passed ip the year 1696, it is provided,
«that .if any negroes or Indians, freemen or
slaves, shall be found abroad after 9 o’clock
at night, at any time throughout the year,
without a certificate from masters, or some
other English person of the family to which
he, she, or they belong, or some lawful excuse
for the same, that then it shall and may be
lawful for any person or perssons, to take,
seize, and secure the same till next morning, I duly considered. New Jersey entertained,
and then bring them before an assistant or and exercised jurisdiction over Indian lands,
justice of the peace of suen town, who shall, so early as 1703, os appears by' an act of
upon the proof thereof, cause said negro or | her Legislature, passed on the 13th of De
negroes, Indian or Indians, to be publicly cember, Of that year, entitled “An act for
whipped, at the public whipping-post of such regulating the purchasing of iand from the In-
town.” I dians,” by the second section of which it is
In the year 1672, the colonial Legislature enacted, “That if any person or persons
of Connecticut adopted numerous regulations shall presume to bpy, purchase, take gift, or
for the restraint ana government of her Indi- mortgage, or lease, of any land, contrary to
ans; among which was one providing “ that this present act, he, or they, so offending,
no Indian or Indians shall, at any time, pa-, I shall forfeit forty shillings; money of this prov-
waw or perform outward worship to false I ince, for each acre of land so obtained, &c.
gods, or to tho Devil, within this Colony, on I &c. Maryland exercised jurisdiction over
pain of forfeiting thesum of Jive pounds to the I the Indians within her limits, by legislative
public treasury of this Colony, for every time action, at different times between the years
any Indian or Indians shall be convicted of |
performing the same.”
As further evidence of the criminal juris-
diction exercised by Connecticut over lndi-
1704 and 1723, inclusive. North Carolina,
in 1715 and 1748 ; and New Hampshire al
so in 1715. The latter State, in the year
1715, passed “An act to prevent, and make
ans, and especially for the benefit of those void clandestine and illegal purchases of lands
who have made such outcry because Geor- \from the Indians,” by which it was enacted,
gia, of late years, has exercised similar jus- “ that all deeds of bargain, sale, lease, re-
tice towards them, 1 will offer one further lease, or quit claim titles, and conveyances
extract from her act of 1672: “ And where- | whatsoever, at any time or times since the
as it is too manifest that the Indians, notwith
standing all counsel and advice to the con-
trary, have committed and still do commit
murder, and kill one another, within the En-
glish plantations in this Colony, and take no
course that such justice be executed on such
malefactors as may take off the guilt of blood
from the land ; which, to prevent,
“ It is further enacted by the authority afore,
said, That if any Indian or Indians within
year of our Lord one thousand seven hundred,
without the license or approbation of the Gen
era! Assembly of this province ; and all deeds
of bargain and sale, titles, and conveyances
whatsoever, of any lands within this province,
which hereafter shall be had, made, obtain,
ed, gotten, or procured, from any Indian or
Indians, by any person or persons whatsoev
er, without the license, approbation, or allow
ance, of the General Assembly of this prov.
this Colony shall wilfully and violently fall inces, for the same, shall be judged in the
upon any Indian or Indians within this Colo-
ny, and upon the English land, (except it be
such as they are at open war with,) and hiur-
aer him or them, and be thereof legally con-
victed, every such Indian or Indians shall suf
fer death.”
In addition to the highest criminal jurisdic.
tion thus exercised by Connecticut, the last
extract contains the singular provision of le.
galizing Indian wars within her limits. .One
more reference to the colonial law of Cor.nec.
ticut, and I shall pass to another Colony.
In 1717, the Legislature of Connecticut
passed “ An act concerning purchases of na.
tive rights to land.”
This Assembly observing many difficuties
and perplexities arising in this Government, 1
by reason of many purchases of land made
of Indian titles, without the preceding allow,
ance or subsequent approbation of this Assem.
bly • which, to remove, it is hereby enacted
by the Assembly and the authority thereof, that
law to be null, void, and of none effect, to all
intents and purposes, as though they had npv.
et; been made.” South Carolina exercised
jurisdiction over the whole Indian country
within her limits, as early as the year 1739,
by enacting that qo purchase of lands from
the Indians should be made, but by the King
of Great Britain, or the colonial Government,
on the pain of forfeiture.
In 1786, that jurisdiction was enforced to-
wards the Cherokees, by assigning them, tem
porarily, a tract of country for their occupan-
cy ; and in 1808, entire sovereignty was ex
ercised by that State over the Catawba In-
dians.
Thus stood the jurisdiction of the Colonies
which have been mentioned, in reference to
the Indians within their several limits, at the
commencement of the American Revolution.
This subject has not been passed in review be
fore the House in an unfriendly spirit, or for
the purpose of recriminating any one of the
all lands in this Government are holden of Slates to the early legislation of whjch I have
the King of Great Britain as the lord of the thought it necessary to advert, but to show,
fee, and that no title to any lands in this Col- { from the most unanswerable evidenc®, that
ony can accrue by any purchase made of In- the same jurisdiction, and in some instances
dians, on pr -tence of their being native pro-1 more, than is exercised by Georgia, was ex-
prietors thereof, without the allowance and ap-1 ercised and enforced by the early legislation
probation of this AssemblyOther acts were
passed by the Colonial Legislature of Con-
nectfouf, relative to Indians, in 1717, 1722,
and 1750; but the foregoing will show most
clearly that the Colony assumed unlimited
control over them and their lands.
In the year 1700, the Colony of Pennsyl.
vania is believed first to have exercised her
of a large number of the original Colonies.—
I do not know, if the proper means had been
withiq my reach, that I might not have discov
ered similar evidence in the history of all*—
It cannot matter in what manner entire sover
eignty and jurisdiction may have been exer
cised by any one of the States in her coloni
al or present condition ; the fact of its exer.
jurisdiction over the Indian lands, and her cise is all that is wanting to justify Georgia in
legal records show under that date “ An act exercising her rightful jurisdiction 1>y their
against buying land. of the Indians,” which example. It thus appears that the American
contains the provision, “ that if any person
presume to buy any land of the natives within
the limits of this province and territories,
without leave from the proprietors thereof,
every such bargain of purchase shall be void,
and of no effect.” In 1721, she passed « An
Revolution found the the Colonies in unre-
strained exercise of jurisdiction over the lndi-
ans within their respective limits. I will now
proceed to show that such jurisdiction has not
been limited or restrained m any manner, eilh
er by the articles of confederation or the pres-
act to prohibit the selling of rum, and other I ent constitution, except in the single particu
8tror.g liquors, to Indians, arid to prevent the lar of regulating commerce with the Indian
abuses that may happen thereby,” reserving tribes ; and that if the claim to exclusive leg
‘‘that the Governor and council, or persons islation over them is set up under that grant
by them, authorized and appointed to 'hold of power, it may with equal propriety
treaties with any nation of Indians, may, at be set up as against the States of this Union ;
such treaties, give any reasonable quantity | and if it can be supported against them, this
of rum, as by them shall be thought necessa-1 is indeed a Government without limitation of
ry, any thing herein contained to the contrary powers.
notwithstanding^” It might be sufficient for my argument, to
And I find that in the year 1744, colonial show that, although Indians have remained
Pennsylvania assumed the jurisdiction for unbodied in most of the original thirteen States
which Georgia has within the last six or sev. ever since the Declaration of Independence,
en years been so much derided by some, and no authority has been claimed for the Gener-
passed «An act for the speedy trial of capital al Government, either under the articles of
offences, committed by any Indian or Indians confederation or Jhe present constitution, even
in the remote, parts of the Province.” In this for the exercise of the commercial power over
act it is provided “ that all murders, man- them, much less the odious usurpation of ex-
slaughters, homicides, felonies, and offences, elusive legislation, as attempted to be set up
whatsoever, and accessaries of the same, against the State of Georgia. It has been al-
which by the laws or acts of Asssembly of ready been shown, that many of the colonies
this province, are declared capitnl, or felo- exercised, under the authority of their char-
nies punishable by death, which already have \ ters, entire powers' of legislation 'over the
been committed, perpetrated or done, or shall whole extent of their limits, long before the
hereafter be committed, perpetrated or done, Declaration of Independence ; that they de-
by any Indian or Indians, within this province, rive these powers over the countries included
in places remote from inhabitants, as afore- in their charters from the British crown, and
said, all and every such offence and offences, it is fearlessly asseried, that the jurisdiction
in whatsoever place and county the same of Georgia, under heir charter, was as unlimi-
hath happened, or shall happen shall hence- Jed as the rest. To Show this it is only ne.
forth be inquired of, heard, adjudged, and de. cessary to refer to the proclamation of the
termined, before the Justices of the Supreme j king of Great Britain hi 1763 Wherein the
Court, or the Justices of the Courts of Oyer I countries in possession of Great Britain, with-
and Terminer and General Gaol Delivery, to in tier colonies, and occupied by Indians, were
be held in the county of Philadelphia, by : in-1 reserved under « her sovereignty, protection,
dictments, inquests, and verdicts, to be taken and dominion.” Ir is true, that the sover.
of good and lawful men, inhabitants of the eignty, protection, and dominion” claimed by
same county, in like manner and form as if the king of Britain, was said to be for the ben-,
such capital offence or offences had been com- I efit of the Indians ; but it is not the mode of its
mitted, perpetrated, or done, within the said assertion and exercise that is at issue between
county, any law or usage to the contrary there- Georgia and her enemies, but the sovereignty
of in any wise notwithstanding.” actually asserted and exercised by Great Brit.
There is, in this last r act of the colonial ain throughout the whole extent of her Amer.
Legislature of Pennsylvania one feature, ican Colonies, and which passed each respec
which shows, that however well the general lively fully and completely, upon the estab-
doctrines of criminal law might have been .un-1 ment of their independence, and its acknow-
derstood in that day, the injustice of passing ledgmerit by Great Britain, saving and excep-
ex post facto laws does not seem toliave been I ting as it had been curtailed and abridged by
the articles of confederation, and subsequent
ly by the constitution.
But how have the original powers of the
respective States been effected by the. various
acts which, for all external purposes, haVe
made us one people ? The first act of Union
was the Declaration of Independence, and as
its acknowledgement by Great Britain oper-
ates retrospectively, it will- be proper'to in-
quire whether the Declaration of Indepen-
dence modified in any manner the power or
authority of the several colonies within their
limits. It bound the Colonies to’a common
and iho holiest cause, the vindication of their
liberties against the odious oppression of the
mother country. But except this pledge to
fight out the battle of liberty to the last, it is
not percieved that the Declaration of Inde
pendence modified in the slightest degree the
internal jurisdiction of the several States, nor
do I believe that the contrary opinion can be
sustained for a moment. Then, agreeably
to what has already been shown, the power
and jurisdiction of the several States at the
acknowledgement of their independence by
Great Britain was precisely what had been as-
serted and exercised by her authority withio
their limits, except so far a9 they had been
limited and restrained h.y the articles of con.
federation. I will now endeavor to show how
far the entire sovereignty conquered for the
several States from Great Britain has been ef.
fected by the articles of confederation, or the
Constitution which has since been substituted
for it. But as the subject under ennsidera.
tion relates exclusively to the jurisdiction
rightfully belonging to the State and Federal
Government with respect to Indians, I shall
confine my inquiries and illustrations to that
subject, adverting to other portions of our or
ganic law only so far as it may serve to throw
light upon this.
In illustration of my subject, I shall remind
this House, that by the second article of con-
federation, “ each State retains its sovereign,
tv, freedom and independence, and every pow
er, jurisdiction and right which is not by this
confederation expressly delegated to the Uni
ted States in Congress assmbled.” In the
destruction of powers conferred by that instru-
ment upon the 'United States, it is further pro.
vided in the fourth paragraph of the ninth ar
ticle, that “ the United States in Congress
assembled, shall also have the sole and exclu
sive right and power of regulating ihe trade
and managing all affairs of the Indians not
members of any of the States : Provided
that the legielutivo right of any State, within
its own limits be not infringed or violated.
Thus, in point of principle, was the power of
confederation over the Indian tribes, with res
pect to theirgovernment within the States, left
precisely as the parties found it. Great Brit-
ain claimed, and for every purpose of her in
terest or convenience, exercised entire sover
eignty over Indians within the limits of her
Colonies ; and most of the Colonies with or
without reference to her sovereignty, exerci-
sed unlimited control over them, and the dec
laration of independence and its acknowledg-
'ment by Great Britain, placed the respective
States in possession of all the power ever
claimed and asked by her. That power was
entire sovereignty and legislation oyer the In
dians, which, within the States, was not im-
paired or diminished by the articles of con
federation, but is expressly saved by the pro-
viso to the power conferred on the Union in
respect to the Indians. The best exposition
of a law is to be found in the uniform and
long continued mode of its enforcement.—
Applj ing this rule, there is no difficulty in
determining that the several States under:
stood the articles of confederation in the sense
which I have given to it, as they continue to
exercise the same jurisdiction over Indians
which they had exercised in their colonial
state, and that Was complete and entire sov-
ereignty. In addition to the numerous exam
ples of colonial legislation already brought to
the notice of the House, it may be further
established by reference to the legislation of
Virginia in her constitution of 1776 ; an act
of the Legislature of 1777 for establishing
a general court: by the constitution of New
York in 1777—her act for Indian affairs,
passed in 1783, and her more recent legisla
tion on the subject in 1813 and 1822, as well
as her judicial decisions ; by the Legislature
of Rhode Island in 1783; of North Carolina
in 1778 and 1783 ; and of Georgia in 1789
and 1796, as well as more recently. It is
obvious, from thes'e illustrations, drawn from
the colonial and* State legislation prior to the
establishment of the federal constitution, that
the several Colonies and States claimed and
exercised entire jurisdiction over Indian af
fairs. Nor is it.'believed that any attempt
has ever been made to interfere with either of
the old thirteen States on this subject, so ns
to control her municipal regulations, but the
State of Georgia.
Desiring to despatch this subject, which
can be but of little interest ,to this House,
compared to what I feel in it as a Georgian,
I will now pass to a very brief inquiry into the
powers conferred by the States in the federal
constitution, for the regulation of Indian af
fairs, and the manner in which those powers
have been executed. It will be recollected,
that whatever power or jurisdiction may have
been claimed by the government of the con
federation on one side, or the respective States
on the other, in regard to Indians, the subject
is now entirely regulated by the Constitution
In examining the present constitution, It is
found that it contains a single grant of power
over Indians to the Federal Government, and
a single restriction upon the States. The
grant of powtf is tef he found id the thiref
clause of the 8th section-Of the first article of
the constitution^* To fegblate cotnmefce
with foreign nations, among the sevefal States
and with the Indian tribes.” it is of the last
importance* in considering this clause of the
constitution, to bear in mind that the - COrtuner.
cial power in its three several branches, is
conferred in the same terms, so faf as regards
their import* and that the power is Commer
cial only. It is also of the greatest import
tance to remember, that as it embraces all
foreign nations with Which W0 may desird or
must carry on commercial intercourse,- so It
embraces all the States of this Union* and all
the Indian tribes within the whole rangfi Of the
United States. In the further investigation of*
the subject, it should be recollected that the
same uniform course has been pursued in the
establishment and maintenance of commercial
intercourse with foreign nations ; they, have
been treated os equal and independent com
munities, and trade and commerce with them
regulated by treaty stipulations. A similar
principle has heen acted upon towards the
States of this Union ; they have been treated
as a community of equals* and the commer.
cial intercourse between them regulated by
the principles of the constitution. Nothing
else has been mixed up with it; because mis-
taken or vicious politicians did not find it no.
cessaryto derive fromita pretext for intermed.
dling with their internal jurisdiction over their
own people. • Nor has the enforcement* or at
tempted enforcement, of the commercial pow
er over the Indian tribes, in its general opera
tion upon the original States of this Union,
within which such tribes are, or have been
situated, been carried beyond the letter or
spirit of the constitution. Indeed, in all of
them, except the States of North Carolina,
and Georgia, there has never been any nt-
tempt to exercise even the naked power to
regulate commerce with an Indian tribe'with-
in their limits, much less any attempt to de-
rive from this commercial grant the power of
exclusive legislation over them. From the
examples shown of the mode of enforcing the
commercial power by the Federal Govern
ment towards foreign nations, and among the
States, it is obvious that no attempt has ever
been made to derive, by any implication
whatsoever, any other power from that grant.
It is therefore, inconceivable, how such at
tempt should ever have been made to extract
from the grant of the naked power “ to reg-
ulate commerce with the Indian tribes,” tho
power of exclusive legislation over the per-
sons and territory~ofady one oTtbese States,"
especially when the commercial power itself
has never been attempted to be exercised, but
by at least one act of Congress; and that
the act by which Ihe various act9 of usurpa-
tion towards Georgia have been attempted to
be justified, has been expressly reserved from
exercise in all the old States containing Indian
tribes, but North Carolina and Georgia: I
mean the intercourse law of 1802. If the
power to regulate commerce with‘the Indian
tribes, confers on Congress exclusive Fegis-
lotion over persons and things in the countries
ccupied by them, it confers equally exclu-
sive powers within the respective States of
this Union ; as exclusive power over white
men at Milledgeville, or over red men at New
Echota or elsewhere, in the Cherokee nation.
The powerin each case isconferred in the sam»
clause of the constitution,£nd in terms equally
comprehensive and unlimited. How, then,
can it be pretended that Congress possesses
in every thing relating to Indians and
the territory occupied by them within a State,
without carrying along with it the claim to ex*
elusive jurisdiction of thecitizensof the several
States ? The claim is as monstrous and absurd
in the one case as the other. I know it may
be said, as it has been, that the older States
have acquired jurisdiction aver the Indiana
within their limits at an early period, by their
voluntary consent; and therefore may have*
rightfully exercised it, forasmuch as such
tribes were not contemplated at the formation
of the articles of confederation, or afterward,
when the present constitution was framed.—
I deny this ; for the grant of power in refer
ence to Indians in both instruments is gener
al and unrestricted as it respects the States ;
and.if such voluntary surrender had been pre
viously made by the Indians, by these grants
of commercial powers, the respective States
delegated so much of the Indian jurisdiction
to the Union. Either it was the duty of the
Federal Government to have exercised the
jurisdiction heretofore claimed towards Geor
gia oveij the Indians in every State of this
Union, or a gross usurpation has been at
tempted towards Georgia in the efforts here
tofore made to enforce such power upon her.
It may be said that the exercise of the com
mercial power towards the States is restrain
ed and limited by the guaranty oi a republican
government to each of the States of thia Un
ion, and by that amendment which declares
“that the powers not granted by the constitution
to the United States, nor prohibited by it to
the States,, are reserved to the States respec.
lively or to the people.” If this be so, and
it is admitted, the same provision to the con
stitution afford equal protection to the States
against the exercise by the Federal Govern
ment of exclusive jurisdiction over Indians
within theirlimits. But there are other pro
visions of the constitution, which bear with
peculiar forte upon this subject. It is declar
ed that “no new State shall be formed or
erected within the jurisdiction of any other
State.” Yet, according to the honorable'gen
tleman, Congyesil had the right to erect the
Cherokee State within the jurisdiction of
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