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^ M erted also
them, and the exclu-iv«
title, wlilrh ..crupiiuiv pave tli. '
lilies already been wit, 111 til
pancv” wai niin - ■ ed, nt tl ■ '"ir'iir peri*
the liisti rv Id Hu- country, ! 'be t nj In net .1 |w>«
session, ninl I. -. . , > I<■ (In- received J• rin•
pie* be bo extingd . i f tli [nvei
menu were d *p<>- v. ilhin llu ir nap. niln limit*,
to adopt tills *iiuii..i.ry |ir- ee»». lint tin Imve v i ■ I -
ded to belt r i iun»el«. I’nblic lav. bn* 1 on inoliors.
ted bv nut.lie opinion, and Indian l ie, «nati ve,
till, |' n *y i„., is now- no.,mred by lu.iiun ifvg <ti»ti'"
It i* nut difficult, however, to *np; ■ -e llmt cn»«*
may nrinn in which a rewirlto tli.- antiquated | rat lice
of a large and fertile dMri-i of country, v ere t .
dwindle down to a few individual*, utterly unable
to cultivate or orcirn, ‘ their him'. • •.
if these person* ilmnld nertinaoioui , refuse I ■ eld
any portion of lln-m. 11 »♦* c.stiv:.'«'■ m/tA t.u-iy ti-
tle'.t the will of the rivilived vert i"i I. w.o.'d lie
as defensible ns was the ori ;i.al or r up i u an l np
portmnmcnL nf mr c ountry. And »• •• 1
heretoP >r«- tire inure, upon which U * • ' i '' ’
. pally ilepcMHl for BuhsiHlenrc, l-ia r. . . «mI ! • (• <• ih.*
odvnncin^ 8,-tHi • u rtf, and n-t.n i!, •
tribes who puruire them, into lire ■ <
the forests. Thus h i i;r a dull i«*t
proper food of lire I •!’ ire, and t
them. Andlhia proe. " 1: n kept pi
gross of oi»P Rctth-m* nt«, ntnl With
unnppropriileil imil • . . Tho 1 have h«'*n
generally willing to r.-.'inqui: h, v Mcn.-wr the gov
ernrrientjias hoen d sirrere t• • pnr* uni tin* i n.
eideratinn paid a I Roeiirod, if properly applied l»y
them, would prpl ibly lto in ire t ill 1 lo tn n i
droduot t cou i ■
Should, however, the e.i- «' III J'l,; time arise. V. l.-n,
ns V’attel express* h i(, inP./dnala, thun r •'ti.ii.V.
must be “i
Pc', hoped that every nerrtomry art.uig'.in-nt will lit
ir iminVdi :•/ comfort and Put urn securi-
That ample p» Hon* v HI he • . #?. -I (.
the nioa/tn nf rubainteneo siciii cd, in the
i to which Hrev have been nccusloured. That
their want* will I/* h erilly fiiipp’i* <!, and theimmlv* •
i ied from/(
privations and misery, to tho bh-stniwM of intelli
gence and nrligi'di, and to all the advent a-' of ci
vilization.
It is believed, tint the settlements in Aii«tt. !n.-i i
have, within the pr- nt geiu-ritioii, hren c >inmei:c-
i^innl principles
vent of thut
Home other
her rerpeet
tin- I
nf the
and »'.ii'h |.
nii, ;,.d,' n I *1 ill V : . try preserve - nr ; -»•
... I i.i-ndsli'i* mi';.i'll .'ii, until tits lenisl duro (..r
.... .. . ..nncil) nf 111.. I liletil Shales eliall llmli.- other
i ■ nitnldo provision f..r the |inr|m»o."
II nitty lie remarked. I . .1 this “ other equilal l-
provision” does II..I allVcl Ilia previous prnct
which i" tn ha pursued in nil coses, *1 he treaty
merely authorizes ('on^fs.i, in the
process being unsucc. i ul, to prov
iimtie of redressing the injury. In a)
the parlii a sum to lie equal.
Tire following nre the existing provisions of tin
Art nf Cnnjjrrsfl id March, m l'17:
That if any Indm nr other person or persons
shall,* within the I niled Stales, and wilhin any town.
< .iTict or territory, Indon/mg to any nation or na
tions, tribe or trihes of Icdiam*, commit any crime < r
mi.-demeanor which, if c« .’inntted in any ph - *t
district of country, under the sole and
rindi. :iou of the I’nited would h tin
the United f- taten, he punished with death
other punishiunnt, every such nfiVntle
thereof convicted, shall Buffer the like Ji
ns is provided hy the lows of tlm Unite
the lil e off( -i, if commilted within
district, under the Role and exclusive ]<
the United rlilies." *» Provided, tint
this Art shall he so construed, as tonff’d
now in t.irco, between the United U't ites
Indian n ition, f»r to extend lo any olPci.ee,
ted l>v on* Ind io ngainst auotln r, wilhii
dim houmlary."
It will he rncolled that tho present mipti
111,, right of jurisdicti ui of civilized cun
over ! ;rl».irons tribes in contact with them
into the operation of any conventional etc •< genie
v. Ill'll nriv extend nr contract litis right. Thai (j
U in will he’considered hereafter.
With thin remark in view, is it not clear, tint th
authority which could enact such a statute, could on-
net any statute upon this subject. <' uld i .t ml its
wh de penal code over the Indian territories, and in-
v. ilhin the sphere of it** on-rate n all pci n
011:1 to ita penalties. This statute is in fact a
pn tie 1 assertion of unlimited sovereignty, so far
1 respects tl»«* natural rights of the parties. l*y the
peal of the prpviso, it would heemno precisely
what the firitirth ami Mew York statutes, already
The game fled i
V ,1 f -!*. nurl jhe Indi : s f.Unwed. The hoi!
11 t . • Cro 'll 01: rinnlly claimed title, being no
lor '"1 ' ccitpied bv its am ient inhabitants,
, ,1 out ac.'.ording to the will «-l the soverei«m
.... . r, and taken posse-sion of hy persons who
I.ii .j,*1 immediately of the crown, or mediately
There being no exception to the power,
ulnting the intercourse.; it must operate on mi vom-
intinistV.i of Indians, exercising the right of self'
governinent, and consequently include those who
reside within the limits ot a {State, as we ll as oth-
that of reg-1 savages was look
rm all com-1 cured. As
nee" is the right to
on the treat
bringing
ulatcs,
ui Id to
nlntf
'1 i 1 a I law which r<
, in ral, the relati*
in ipahle of application to a
The resort to
new and different rule, belter adapted to the
eiuni state of tilings, was unavoidable, livery rule,
vlneii can he suggested, will he found to ho attended
v.th great difficulty,'*
'j’.i! uotation •contains a candid and aide summa-
v . . the e.ircttmwUnm s, in v. hicli the - parties were
i 4 , . J, and of the can.-.which led t< the Nexv
-t st,-n of itilnrcnmtmiuicQturn that v.as ade.pteil.—
To the r.m i'irt here put wo answer, ro. If rm
a,provision can he found in the Cnustitulion. we w..-
agree to al ti Ie argument. There
indeed a provision for regulating corn me ice w .th
the Indian tribes, hut xve need scarcely undertake
to shew that between ronnturrr. and intern
there is a v.-jde difference. I’nr t*-o xv.do, t» render
lln ni f..i!V. it Ills tvrms in tin. investigation of III*
delimits i|ne*liun i.f conflirting; jnri.diitinn. ’In
•peak lonibillv, tii« forint r i» a npeuie*. and llm l;.t-
tur ; Pll iit. On.-, existing at all times, in n great r
,.r 1. 1 il. .n . , t.Mtll in |.-aee and war, the i.tlier,
like the s*.Ti; d . : law*, becomex nlenl amid arms In-
i.r./n:r,i, iorludes lonunerite, lilt it include* also.
utlier f.-ialmns, ,).<lilieal and personal, id
wliieli I- nnneri'i- furms rm part.
.pin. Clnel' Justine also reinnrlted,
wind., inters nrs- betwi
this nation, ktlie Cliernk , , .
anil laws, vr.-i.'d in the government of the United
States.' “ They,” speaking of the a t* of (it or-
jrin *• inlet., to lini'ilily will, tlie relations, eatab-
I,she,I 1„.|iv , n the United Utates and tile Cherokee
nai;,,ii. 'i' r'..iriilntion nf wliii h, arcording to the
sell!..,| I, t.r our e.iinslitutiori, is ifoiiimiUad
ex .lo - ■ v. ■ 1 the govern of Urn U.-hates.” j
i ,-ir,pears to us, is assuming the very
i vv 'in-'h the controversy turns. We can I
i11!ti1111 no cliu-e, giving the i niled
r u i to ri 'Mihiie the iwtn nivrsr«»r relations
: i ;n trihen. \V« nflk for that clause. It
, r tile 1
i power from some express grant, and we
I .e I.nir.ion, tint tiie • xcIiimVh control t.r
making authority, and n special
•., r ; , -ion OVCI ::!i matters fairly connected there
of | d as lung as the Ueneral * «"v-
: 'Ur, • •’ , .. ... ,* *!._< • . «: i >
pnliey ? All Ik,, tory teaches that no free govern-
‘-If eivili'/.ed neon!,.. It
, ■ Ih 11 safety; tlint is, till _
; j . ^ are , reilui'. il in f trennih, or sn ipi-
.| in morals end ltal.it that tho respective
. . . lisl'el... tittle jtttit du.'lion over tin m.
. . .Ilin - on eon: res* to “provide for the
me . Y, hen the poste rotnilnlus may
Milled f..r a military force, mid when Citizens,
eitttiring ly engage in hostilities, will become trni
•|i! the only real aril visihln foundation, upon
,|neh the power ot Urn <letteral Government to con-
Ind" , ii -nty with any Indian trihe, living within
ln-undaries of ft Stutc, can rest. Uxccpt so lar
a* t!.. I ess mil V be thought expedient in the pur-
cl,,... „f their possessory right by the United Stales,
Unit “ lit,. I anti (there the United Stales have the ultimate tin-
he United Slates nnd I mrtt/i.and consequently, the right In malt
) is bv our cnnstitutinit j rulesand regulaliims respecting it. A
• • • > 1 .1 t p, r it la lion of commerce witli the Indians, il
it is ic' > .sary and proper that this regulation should
lie u ulc hv conventional arrangements. And,
thereat*, the extent of the power must he limi
hy l if ei jeelslo lie ftlliiincd. Neilhfrof these h
air.' cm : " r:io:i with civil or criminal juricdictiun,
j j V1 run therefore neither c ;.!« r il upon tin- Indians
if t : VI! it!'. it J mil- take il from the tauUs, if it
mi.-r become a dfRj.nlism, ruled hy one or a few.—
Audi! vo are not wholly misinformed, the expe
rience of cur . n Indian tribes confirm the general
less. n. If tin UmUhern Indians have made thosa
advances in improvement, which many bo confident
ly rt and i t eve, they cannot he injured by the
opt r-.’i. n ..f • ! . . s. If they have not, they nre
•milt mr t.. * l self-government, and to become
the founders ».f an iudeptMidenl State.
We are induced to transcribe from the able and in-
ir report of the (’< inmiltee on Indian Affairs
of Re •
iveprespntntives, made February 24.
ut nf an incident in the history of th«
in the
1*10, the a
Cherokees, not unworthy of notice
time.
“In 1730, theCherokc.
ceremonious relinquishment of their sovereignty,
than any recorded in the history of this country.—
Resides tho ceremony ot # submission; w hich took
place in n general Council of all the Chiefs of the
true, toSir Alexander Camming, ns the Re
live of the King, six of Hie | * ’ * **
\
nth I
upon a btlief, that in-j it.
diflicultii
uns and cummer
> would Bt:
This regulation of
i in in
There is no ex idence . f any prior or tonl.ejnnurane-
ous arrangement with the natives, for the voluntary
extinguishment of their title. But pos-eu iouwa'
taken without asking their eonsbnt, and that great
continent may hereafter exhibit, n this country now
exhibit
maritime discovery, uml of tlu> principles, which, in
modern ages,it has intr •dua- d.
“Fora long he;- ii n of years, 1 " syvs the Su
preme Court <>f New \ “ xvo have cxerri.si d an
entire supremacy overall the trih-s within the Statu
nnd have regulated l»y law their internal cuiioenis,
their contracts and their prop rty."
The American Commissioners at Ghent, in their
answer to tho extraordinary propositions of the Brit
ish Commissioners concerning tile Indians, living
vviiliin the United Ft.tie*, very pertinently remark,
“ if the United States hud now asserted (lint the In
dians, within their boundaries, wlm had acknowledg
ed tho United Slates ns their only protect, r-, wore
their subjects, living only til sufferance on their lands,
far from being the first in making that assertion,
they would only lmtre followed the example, uni
formly and unniversa!ly asserted in nibslance, and
freqmmtly avowed in terms, by tho British Govern
ment itself."
Tho justice of those observations in confirmed bv
the whole tenor of colonial history. Tho treaty “1
Ulreft»t provides, that “ the subjects of Fran, h in
habiting Canada, and other*, shall hnreuflor give n<
hinilr ,. r moll', t iti .it In Urn l ivo nnlintt* or esn
Inn* of Inuivtn, anh/i rt l,t the tlamillitm nf Hunt llrit
ain, nor In lb,, oilior nations '.I* Aimrirn, who nr.
frtanilr of tint nUiunvn. it, iiks lttimm r, tho sub
jects of Un til llrit il.. shall
lily Inwurd* llto Atneiioana, tul'jtelt or irivnils
Fritnce," A.o.
“ But it is tn bit ibslinclly tittil ...vsctly ui-tlli-,! hy
toil the onlijecti anil friends of llrit i n nr Frnnno."—
These mihjins. /Vin.i/s ntnl nll'ts, like tint allies 1.1
the Imperial Hi pttblio of nmiiptily, enj.iyed such n
portion of political po xver, ns “ circuinstaucer allow
ed."
Tho memorial delivered by tho British King’s
Ministers, June 7, 17V., to the Duke de .Mir p ux.
relative to the French construction of this article in
the Treaty, contains one of tho “ fr
of tile principle laid down by the the
“ The words of tins Treaty are clear and precise,
i. e. The Five Nations or Cantons aro subject to tin*
i of Great Britain ; which, by the received
i of all treaties, must mat" to the coun
try as well as to the persons of the inhabitants ; it is
what France has acknowledged in the inobt solemn
manner; td»o had well weighed lliu importance of
this acknowledgement at the time of signing this
treaty,and Groat Britain can never give it up.”
The proclamation of the King of Great Britain in
37(13 is evidently confirmatory of the g« noral views
It declares il to ho the “ ro\ wiii ami pier. ;me
for the present, to Msuryc under our snytri-i.'iitv, pro.’
tnnllon nml dointninn. tor llto tn L . nf tits said Indimo,
sll the lands, lorrilon.'s, ft,Il pr ints, nnd pro
Ii-sslu to grant noli,hi ; t„ |„ |,| JUl r ,
or taking po-se-winn
ol Indian lands. It merely rrsr.rrr
far the present, tits land in the occupation of tits In
diuns for llttor it*.*; l. i.-ing it* *ulia,'qu,-nt ilisp ,i
linn, nnd tin- counts of tin- llriiisit crow it in rslaliot
to it, to In, dal trained by aabceqnent events. It es
tabiisln'j not:,,o K pnrntaitpnlly, roliit.;ttinotlt
In* eventually but oHange* the pricticdof Uking
possession without tits kiiiiw‘Ied;i- of tltu rr -.it t»..v
eminent, which limi I,"litre j>r«.vriii.-d. A ,■ r.>- ,......
wltioli bad alienated the afTi'ctions of the In
and cattsi d tlirm to rally' J the Fr.-ndt sit,n.lard ;
nnd thus ,'n.tldt d the French, with inferior re - tin-. .
nnd numbers in Vi.i.-rlc.i.tocimtend with tliei* rival,
for supremacy, dtirln ; a century of actual war nri
of warlike pe (cs Vl\er I prise n ., won
upon the heights of A'.traliiin, ami the treate oiT.iris
Ind transferred the d t nini in .1 Canada t. Ot it
Britain, the British j
at« tli * I mi
T i».
annexed flection* of nn Act of the U’ donv
1 1700,
heir juri di«:ti«.i..
New York, passed in 1700, will h!icw tho opi
then enteriuined of
1 Wl
larien ha v
v jm ", and nthar Ir * Mnjei Iy adj u nt Colnnn
wlm, by tbeir wicked and subtle in-inuatioiia iudus-
tri'oisly labor to debauch, Reduce, and withdraw the
fnilidiin, from their due obejieuee unto his most .Sa
cred M ty ty, and t*» exe.ite nedatir them ui« t«« s- <h
tiou, rebellion A open hostility against Ins clujestyh
<i iveriwnenl : For , i •vuution iheicof, Be it enacit t
hy liifl Kxceliancy tlie (iovertmr, Uouiuul and Itepre
Hentativefl in (ieneral Assembly, and it is hereby « n
acted hy the Authority of ill" same, th :tall and ever)
Jesuit nnd Seminary Rrieat, M it f i .i. • rv, nr otlie;
npiritual or reclesinstiral percon, made or onlaint t
hy any authority, power or jurisdiction, derix.d
• Mullengcd or protended from the 1’npo or e ol
P.dme, now residing within tins Province or any part
thereof, »hall depart frnrn and out of tho name, at ni
before tho first day of Novemb. r next, in this
year, one thousand sevim hundred.
“And he it further ena< led. Ac. That
every Jesuit. Heminary Prieet, Missionary, <
Npiritual* or eccleNiuNlical person, made or ordained
hy any authority, power < r juried.efiuii tU livtul.
cl,alienged or pretended from the Pope or Fn- ol
Home, or that shall prof-; s li'miself, or otherwise ap-
hy Preaching, and hy teaching ol
uihera to say any Popish prayi ri. by celobrntln * m u .
jiislifs’ all the pcones of cruelty find oppres- j
whie.lt have mark' d the progress of the Ftiro- 1
[jean t and their fh sei jtd intii in this hemisphere, i->
equally mu:-.lU*d for by hu nnity and justice, and
hy the defence of the principles which they assn n-
ed find too often abused. Mill, he who regards hu- j
niati n ittir*' *,s i is, ar,d Iem nhr> vl u;"'ii all t!i
int'dligeiice and induKtry have done and nr.' doing,
will t -arcely regret the great change which lots bet u j
, flVoted, nor wii h tli it the i flit of ign xrani e i n
. tjirera «»n yet res'ed up > i all l!iia lair proxpect.-
Tliat t!;e (fenoe*c navigator h-ol yielded ' > tlm im-
portunitie.; and menu of his crew, nnd left one
half of the world unknown to the other.
From Huh general review of the doctrine ihccnni-
mentnriefl and tho practice, tlieso conoluaiona may
he deduced.
1. That c.v.liz il cnnii.iunilieB Isave n right to
take posses, ion of a nmiitry inhabited by barbarous
<nbes, to a-.omiue jurisdiction over them,tSs "to com
bine within narrow limits," or in other word-, t >
appropriate to llieir own use, hucIi portion of the
territory as they think proper.
2. Timlin tlia exercise of this right, fliich com
munities are the jiulg* h of the extent of juris
diction to be a sullied, and of territory to be noquir-
d to the present ; » r i< able di
are amalgnnint- ( or inltwenurue, it it give the United iSliitc
.»jurisdir-tioii over the Indians," givea. ns \v«
vr raid, * vt ,; ! ivo juriKfhcti'm over all Inreign
• if os. and I.ver the wimlo Aim rienn people.—
e eurely need not pursue this subject fur tli* r.
Were sue Ii an enquiry useful, it would not he dif-
i.'.l to allow, that there were very sufficient rea
ds* ffr granting lo the general government this
xver to regulate commerce, arising out ot the sit-
ten of the various tribes, Bonm of them Jextend-
g into several Fin Lea, and all of them powerfully
reti (I hy the influence of the traders, nml hy the
pplica rendered necessary to their comfort and
b.-htenre. But it is an investigation, into which
d in Hi
11ust, however, carefully separate tho treaty
power from the power “ to regulate coin-
v! th tlm Indian tribes.” The former is
> the 1’resident and {?»'nnt", and the hitter
< to (hmgress. The authority therefore
.* .trenti s with the Indian tribes, whatever
V In . ch rives no s upport from the power to
alo comnuTce," but exists independent of
To prevent misc.inception we may ndd, thnl with
in* hr, r. Hilaries of the respective Ft ales, and xvitli-
,e l • nf. Juries fd’ tlto Republic, Hie United States
• a general j nr italic lion over the Indian tribes, ns
to of sovereignty, and in cmifor-
ith acknowledged principles of the laws of
Conceding now, what however is n
tint, under the Constituiion, nml for the
3 and f
ulrol ox er tho I"
five ol the King, six of the principal chiefs were se
lected, wlm actually went to London, and laid the
Crown of the Cherokee nation at the feet of the
King, and acknowledged themselves subject to him.
in the same manner their white brethren of S.Car-
Neither of these have \ linn were."
In endeavorin'" to investigate the effects of the vft-
r a. . trealies. that have been c included with th«
Che*- -k. cs upm* >he relative ri :hts of that people
, we are malattha threshold
hy an ol■’••ctiou xvliich, if valid, terminates, and fore
ver, t!;e xx hde r ulrovursy. It is said that the form of
these iii:drumen'::, and the descriptive epithet “ na-
tiori," :;]• plied to the Indians, arc n full recognition
of th. ir inch pend •nt p»>t.ition. and that we are now
precluded fr Mr. 'Vnying tho legitimate conBeqnen-
ct s flowing from our c xvn admisaimia.
In tlie < x imi rdien • f this topic, wo consider it
wholly .'.inece- ry to enter into any verbal criti-
t ! '*isni res].* clipg tim u.sula:* il meaning of words.
\Y’! !her the compprls are called “treaties" or “few--
rniHon.*," or, as in some ot the New York arrange-
incuts, “ contn;< whether tho parties are termed-
“ nati ; ." •• tribes." Imrd« s. kraals or “ cnritoiis;”
v.-li-t'. r t •• ‘ r. jts < ured lu them is donqtninnt>
id H 1 •* j • ns," “hunting groumle v ”
d held by “assignment.;" “ allot-
uarnnlt <•;" all this is in our view nllogetli-
Inc'.tau camn, with its duties
t required, or
purposes ot i me
tho general govt-rnmenV has
aus. that (
ntrol i
• I i ;• at if i
lu tlm preceding i
been made to show, 1
and s mI, with such
cos might 'rquire, \v< r • tlm necess:
the i!':M'ovei v And flelllement. of A
•t- ■ «.l
a lie
gl-.ts of jurisdiction
3. The power
AWT lo make |
thoiity, hy virtu
assumed and ex
As no war ha
against an Indi:
tlT;'se people lu
thorlly. it is mu
discussion with
'i’li.' treaty m
pi wer to innlie [
li-m in the Pres
f Congress to declare war, and the
me furnish tlm only icmuming au-
of wlijelithis jurisdm'.i u can he
cised.
ever been declared by Congress
tribe, nnd ns .nil nur wars a-.r 'inH
been prosecuted hy I.xtculive mi
ce:: ary nt present to ei-ibarrass the
y olmervnimus upon the war nn-
pnxver t<
king power includes •• ilhin it
nee II is vested bv Hie Canslilu*
lent and Senate,
n nati' iml law, are compacts made be-
eigna. In monarchical g.)vermm*ut>, the
them is generally a l.i iuch of tho
It is u;» inKngland. No treaty
jrn-t construction of the grant ol
ties of the government. It is i wor
existence or exercise, that it | and
y “atlrihuto of*
n danger is no Ion
i the • r iinarv civil
■f»e and cuiifnsi. n and «! moo is, is not a favorable place
lie limited by
power, ntnl hy Hie n
not esseiiliai in its
should include ev«
nnd it will cease wh
prehended, nnd win
community is sufficient to govern
Ind'iMs. Ar.d the Flairs must
when this period has arrived. Y
strength of the parties, and the ci
improvement of tlm Indians rende
itriscliotiori, till that time
llbj"Ct left to tlio'Ftate an*
!r.ic::t
for c,i ut a Maly xvii ■■'.:! f ti.e precise im-nning
word •. imr i: t | a ' t,■> tr :::. ! te them literally
r.actly into anv Indian tongue. Our Innguogw
nd the a!,': I'im'l mics are rndnally dilVerent; and
• Mr. ii' : in! well 'bserved, the pi uns of
This differ
Ilf the if/rr/j are different. T his difference is not one of
idimn merely, but it enters into tho whole frame of
their society. and into all their thoughts, nml their
mode- of expressing llmm. Wo look therefore to
the spirit nnd object* of ihoso instruments, nnd to
the pi ev.aus ami •■-ml' Miparnneous relations subgist-
ing between the parties. And we construe them na
. lood and wor® In fact
understood:
Our i : f th.- Indians is distinctly ad
mitted. When tu-refore n stipulation, expressing-
that sovereignty, is u:s< lied in an Indian treaty, it
is merely declaratory, not. auxiliary. The right ex-
i ti d belbrc the treaty, and it extends to tribes, with
whom
circiinistan j m :h a ccpt it: >n of tlm term, was ever negotiat-d
In ! '
prop-.-
iglisli ('roe
i :it,-d to conduct
nuse thes,
clenieritar
■ discussions and •:> the his-
because Hie consideration of
lor tho cour. o of tiiu urg’.i-
ch hag required Hie present
ts further progress, the con
solved, and the enquiry will h •
•xaminatuM
lexion will
onfmed to t
'.did.
<!rautmg of absolutions, or ii-in^ any other of th
i’oniflli cereumniuu and rites ot vvorshii
mum, title
called or lui
i; > n h j
ho shall continue; nbub,
■ into this Province, or any part thereof, after
I member aforei lid, pIiiiII be deemed
ami Diulurher of the
nd an enemy to tho tru
HI ho adjudged to null.
thexa proceed
ratifieatioi
t“whirl,
nisters were i
i negotiation, no ingtrui:
, ipprobal ■
All
tempted
Al.noht Hiu tifht, in tlieii*
ais proclaim
>t |iroe«ed..d up, i, lit* general •...■iiuntiou juris
slietion and tills, it still “
the tern tone* oeouuisd br the Indians. But it part
e.l wii ii no rights ol limsd nrei.r is ,|by I
Tbeso remain, d.nft t the proel unation, ns they ex
isle,! before, and to be ascertains^ indoprndsntly ol
that instrument. 3
TI,:.* branch of the subject shall he closed by ex-
Iroot. from llto statute* of three iVOerout gorsrn-
ml of which, t,,,t mis, are of comparatively
l it ', wii...*,. ol.lljraliun has not bsen queslion-
wltoso tthsarbinn nuthnritv
I lie first i* u section of
I llieir ;
the first day of N
and accounted ;m Inceud
public peace and safely,
Uhrifltian religi-m, ami wl
ptrpetnal impriaonment ;
so sentenced nml actually impri: nned. shall break
prison nml make his escape, ami be afterward* re
taken, he shall Buffer hucIi Pains of Death, Penal
lies and Forfeilurea, ns in case of Felony.”
Thu roniam'o of Indian history has prodimej im
pression*, ii"t lean injurimiH than erroneous. Zealous
but enthusiastic men, have surveyed the condition
of the Indians, and have depicted it, as it never did
exist, ami never can exi. t. while the integrity ol
their institutions i« preserved. Their life m ess n-
Hnl) ■ one of exilosure, iff wunt, a» ! of ■ uff» ring
When the veil, tint h id eovureil tln-m for ages, was
withdrawn, mid they became known to the eiviI...»•<!
nations of the world, they were ftumi, broken into
petty communities, nml in n state of
tiliti < \\ ar xx;. - their huom >s
N l to Kuhdiio, but to exterminate. Not to a-s.-rt
rejected, nor to procure uactisfaciion for inju-
Iti d ;—but lo gratify Hint thirst for 1-1- d,
which scorns implanted in ever}- Indian breast. There
was no pemt of union between them and the «tran-
gers arriving among them. Timir habits, feeli:i s
and opitiioiiH, nml all that constitute moral nml pi*. -
hmmiI varieties in the human race, were os-euti i'ly
differort, and after Hu* lapses «r two coluries, are
yet ditlerent. There xvere m» Needs ot improve
ment sown, which could vegetate. No elements of
wi rt in exi t *nce, t • bd inovt-I nnd com
bined bv some master spirit. A vast region of coun
try. fitted t » support million» of human buinga, was
mm. copied, or only occupied by solitary hunters and
warriors, who pursued their game or their enemies,
over d strict* now crm.-d'ol with inlnWtantfl, nnd
abounding with all that renders life desirable.
Tins rem :rks of Cl.ief Justice -Marshall upon this
subject, in the case of Johmmn mid Mclnl. sl« already
cileil, fire so just and ju.itiy evpiessud, that they
c:inn *t he considered out of plu u in tliia discussion.
“ Allhough xve do not mean to engage in Hie de
fence of those prin iples, which Lu: y anu have
applied to In..,:io t *!•■, they may. we think, find
smile excuse in the character and habits of the peo
ple, who** right have been wrested fro.n them."
We may here obserx’p, that if the doctrine laid
down hy the .Supreme Court at their last term in the
Cherokee case, tint all that was claimed by the Brit
ish government was “ the exclusive right of purcha
sing such lands a* the natives were willing to sell,"
>f polit
dial Hi" Inrtlansnre entitle*, »...
rights of property, and cannot bo divested of th, fv
without the.r own consent.
But in the application of tho general principles tn
tlm U F. and to tin* Imliaus in contact with them,
a preliminary question ut in**:*, resulting from the.
peculiar form ol* Government H lublUhed in this
country.
Is the general controlling authority over the In
dians vested iri the federal government, or in the
respective {Stales?
It is obvious, Hint in the resolution "f this ques
tion, tlm Indians have no concern. Their rights,
whatever tln-se may he, whether natural or conven
tional, are wholly independent of this enquiry. It
is one, which affects the parties to nur own gov
ernment, nml is lo bo decided by till! < Vus! itulion
which they have established. And whether that
p lion nf b x t-i.-i • n power, which regulates the
rights and duties of the Indium--, reside in the mein
her* of this Union, or in tlm united body itself, tin
relation wllioh the two parties bear to one another
xx ill remain unchanged.
It may be observed in the investigation of this
t, ‘that this attribute of sovereignty once be-
still belongs to
general Gov
ernment. I - the (''institution of the hitter tin re-
lore, tins evidence of cession must be found, before
tile powt*t itself can he exercised.
There are-hut three provisions in that instrument,
v. nii :i have tho remotest connexion with this euh-
Htill the
sable.
It i i
i ll to 1 lie ci ostitiitioii of
udiitg to umdern prac-
-■mip.-’ct ran assume that high cliarac-
, . to be n i ognilion of i
nre. And even if they were waived,
press UBst nt m* the sovereign is indjspeii-
portion of
entrust"d to th" Ge:.eral
nBGiimed, and the whole i
thnritiefl.
'I’liis gradual ehat.ge has ' v .cn pl. ee in
nii th" mi-in,.I Ftali-s. And tin* i,. i:icipl« connect
ed ii!. it. t:e n only ohvi'.usly just, hut en-h ns
\v:',| ne r- . tie the dilficilllie:! of the subject,
but nre npport • 1 hy respectable authorities.
“ \\'e i! • not mean to s'v," ol s rve the Supreme I the pov/
(' urt of Nexv York, “ that the condition of tlm I mitted in their country,or h
Indian tribe:-., .at fi rmer and remote periods. lins| :trwl to estahlisli niiht
! en that of HuhjectH or citizens of this Flute. Their
condition has -been gratlu ' y changing, until they
have I"::' every attribute < f .- r er. ignt;. .and become
entirely dependent upon, nml viil»j• • ot to, nur govern-
d, there
I ’ .lily i ' t Indians in Nexv Y rk IImw
t formed treaties. And so of
trade, to jmni
v their
it.-
governiiie
longed to Hu* several Mates, and still
them, unless they have ceded it to tlm ^
clear from xvhmt has before stated, that as we
Cr«»m *h« period nf th..* fiiscovi-ry, the prac
tice, if not the doctrine > f the Buropeana, in Uu-ir
iutorcourso with the Indians, becomes meliorated,
and humanity n rt:* her Ylaim/i in fatfor of the
latter. At first, nil rights of person* and proper
ty and jurisdiction xvere d isregarded. But hv ile-
jrnTH ilu* true principles of intercommunication
were investigated nnd acknowledged, nnd the ci
vil.’ ‘d governments found, that ns much land
should be assigned to tlm primitive people, ns xvn's
neoi :• iry for tin Ircomforabla subgisit nee, nnd that
the jurisdiction to bo exercised tdioiihl depend up
on tiieir situation, disposition and other circumslan-
Ui tlm Spanish laws of the Indies, il is provided,
that •• the Indians shall bo left in the possession of
their lands,'hereditaments and pastures, in Mich a
ma ii ti r that they shall not slniid in need of the ne-
<*t - -a; m s (.I’ hfe,ami •• i ill be allowed all tlm aid and
-| t’.irililies for tlm bu-It nance of their household and
families.”
Massachusetts, in 1(33, declared, “that tlm In
dians had Hu- best rtt/hf in hucIi lands us they had ac
tually sululuctl imil cuhirntrd."
In 11T, the governments of Massachusetts and
Conn, cl ii-ut are desired by the commissioners of tlm
United ('fdoniea. *• to take care that Hie Fe(plots he
n «• * - • •: i •: 11 nd .i t :1 xxit.h lands, convenient t •. r their :"b-
Ristem e, xx ithout prejudice to the iinglish plai.la-
!iis opinion war
• t Indians in N
at tho termination of tlm “ for
mer ami remote pencils," when they retained their
quasi independence, there are no materials at hand
for ascertaining. No doubt, tho number was then
double. But-lhe strength of the tribes constitutes
only one of the elements, for tin* determination of
the'’quest ion of iimorp ir pat ion. Of that, and jif the
others egcli .S'lal-a has judged and must judge.
“ Tiis condition of tlm Indians" say* the Ablm
Itnynul -‘ l»an not alxvnys been the ilium. At first
they were reized, sold in the markets and made to
work like slave* upon the plantations.”
‘•In some of tin’ old Mates,” m ’'Ir. Justice
Mel*'Min, M 1 sachuset’s, Connecticut, Rhode Island
and others, where r.mall remnants nf tribes remain,
surrounded hy while population, and who by their
reduced numbers had lost tlm power of self-govern
ment, the 1 ixvs of the State have been extended over,
them , for the protrcli ,u of their persons and propor-
It is obvious tint l!,o limitation of the power of
self-government, Imre alluded to, must depend upon
the opinion of Hie .State, and nut upon mimbery
•ely. for numbers are not essential to seif govern
ment, vN we may add nre unimportant, except so far ns
relateB lo timir necessary defence And it is ef
ly obvious, that the acjuw n/inn ub incanmucnti
net operate to ikvest Ir.'in Hie General Govern
people in oura
xx Imrever we think
proper. All other govern have done tliesa
th :, -and much m-uo ; and the Indians fully com
prehend the obligation)! they impose.
If limy have miiveisilly been supposed by them-
1 v* icrH, lo Iunder our genera)
m rity, if th *ir ri--iit to the lands
ways been considered
if many of the most
with them have with-
tro:.i-d by our government,
by them ; whatever compact*
tiiom must 1," c-xpoundi-d wills
nil til,' i.,r,'Ks;trv limit:,lions, nri i:to I'ruin this stnlo
Mill 's, (inks* these are eyidentlv desilrned to
change them.
il ih rooi iiked hy Uiiiof Justice Marshall, that
“ this treaty,” speaking of a treaty oilli tho Deln-
v. arrs, “ in its lnogtia;;,' an,1 in iIh prnvisione is form-
"d, nB near ns limy In-, on tho moil, i of treaties lie-
tween the ,-rov.mil lie.Ms „!' lioropo." And farther.
“ tho third art;,-I,-, alluding to the treaty nf Holslon,
contains a perfectly equal elipnlntlon for the sur-
renderof priennere.” And again, “ a bonudary is
ilescriheil hetween nation anil nation," "The words
“ trcnltj and »n/W arc words of our own laniriiaire
8electr .1 in , rr dipt, malic nnd legislative proceed
ings by ourselves, having each a definite arid well
understood manning. We have applied them to
Indians, ns »>• have applied them to other nations
of the rarllt. They uru applied to all in tho tamo
Wo certainly distrust
nn- iiiiu'iiii tuiu-rnmnii <
urift-r upon any of the Ft itcs, an authority giv- I
the former, nml particularly xxhen such nil- s
y, if necessary may he as well exorcised bv tlm *
thorit
one, as hy tlm other,
United Mates
trim's, nnd if, i
If under
lint fortfirfu-
»v tried,
•ntid,
< h xvnrriur, or head of
i,bo of Indians in th
the progress of tli:
»he wrested” fr
i l!iu 1 ;di ms b\
,! fan Act of the British Pa t el as is
1JU. ^ eur S“ JH., pasted Augu.t the p.eft Most..,., ljy, lYv
,. , _ with tlm victorious nation, nnd t ec
I bat from nnd after the pnssj
could any “ right
it* practical assertion.
“ The title hy conquest," continuen the.f’lii.-f Jus-
lice, “ is acquired and maintained i»y f«*ree. The
conqueror prescribe* its limits Humanity, howe
ver, acting on public opinion, Ins establih ied as a
I rule, tint the conquered shall m 1 be wan
ly oppressed, nnd that their condition shall re-
nalihle with tlio objucts of
rporuted
subii
"o,,.. 1 !*’ ral jnstic", organized no
, ,/ n 1111 !“«•* 1,1 th s Stnt", poy«"ss
in the msl ll 11 ■ >n nf trying end pun
5. ..." M rf r scnl»",l hv In'-.v, all persons
ill, with which they aro
The nexv and old members <•;' tm* soi
niingU with excJi other ; the tlisUmMhm hetx
them is gradually lost and they make one peop
When this incorporation is practicable, htun?
wise policy requires, that tlie rights
d to property should remain uiiiin
paired : that tho nexv subjects should he governed n
equitably us (hej,Id ; nnJ thtit confidence in the;
security should gradually banish the p linftil sens'
of h«*i!!g separated from their ancient (-.•nncximis
and united by force to strangers.”
“ When tiie conquest is complete, and tlie con
quered inhnblitants can be blended with the conquer
or*, or safely governed ns a distinct people, public j the French'iia
sentiinenl, which not even the conqueror can disro- inerce may be regula'ed b
ingo
villiin any of the J
nus, or parts ot America, t, t within the
either of Ihe S-.hi I'rovino.'s of I.,.,error Upper C«n-
aoa „r ol any nvil governm •m of the Umti il Sint",
ol America, shall be, and >|, ||,e deemed to be of demands, and
M.',' , ' f: ' 1 " y ' * - : ! . I r • ! . r th ol
Inn ; '• Ivh'-
inr l..„ ■ , , r L;,p.. r e.l, „!
mm second m a statute nf N,. w y,
i lie several pmni.
the
passed -
And Virginia,in U H, pr
litre, h i lands should he pat
had been first set apart to er
familv. behiriffiug l* any I
nei.rliborhood"
These art! hist »rieal slops
affair, and shew that al an e
he ini' rpoved to prevent Hie
I. N l because the Gt.vern-
p uver to acquire it. but because they
deemed it expedient lint llieir citizens nIiooI.* be r •-
s'.raiimd Witi.inju t. 1.mils, as well In pn vetit’lr i:id j Arne
or fmee, nml the eventual dissatisfaction of the In- nni!«-
di ms, n "Hie in ce« i*v." in the words of an nn :ii nt' trib
staluto of Yiririnin, “ of allotting lo them new lands j if a
practice xvilh tlie C* h
uncib: to he held xvilh llie l
util 1722, tli
cl n J -
..: Ii iti'd as •• l
iteal 1 y conduct* d.
expense of “tr-alies N "tiler Indian
to fift • po u n
hum. And expense of tin* 1 rea
. .! : r. n?r wTtnui« Ind ins in 1 733; "was JB43 )
Opi. > I 2.1. In cniifurinity with this, is ihe re.mrk of
Frank!.n : “ It is much cheaper to purchase of them
than to take and maintain the possession hy lorce :
for they are generally very reusonaldo i.l their de
mands for lauds. ,f
Another considerat-on led to this mode of acqui
sition. In the long contest between the French and
British for superiority upon this Continent, the sei
ne iiidians who found useful i t both por-
;Mic1i was desirous of securing their friend-
illiance. lu effecting this it becamo ne-
remove many caust s ofcnniplaint; among
id was more powerful, lln-u the facility
ii Indian lands were claimed and occu-
j.et.
1 The power ;»• *so of, nnd make /HI necd'ul
ml"* and r, :u'atioi-s i* sj'.•, i >g the 'IVrnlnry or
other property of th" i’niled States.
Tn • Har e eviihiiF v reft rs to territorial riglits.
To th poxver t<> c nt I'n! a-id r gul.it e lli ■••*»*, and imt ’ nt
to the i-v M'c: •’ of jiir -ihetiou over Iiidi n s, living! mux
wit bin the country e! limed hy them. It i*. at a'.l J meat h >d
events, inapplicable to the Cherokee country in ‘ deemed it
Georg'ia, to wh It the l nited ?'-late.‘; have rt* 1 in«,mih
ed all their pretensions. Under this clause -if the
Couslilittion, Cop jre s p iss lnxv* to prev. nt intru
sions tip- n the public laud* : xvhile nt the same lime,
the iutruih r.-inre Mil.j; t to the oidinnry jnrisdictmi
of tlie Ft .Li s. ’.vitiim . hu li sorb land* are situated
The p' - to (! .- • te f md make needful rules nml
regnbi::--!!* respecting tin* proj-.erty of the United
Flates a id tlie n >wer to exercise general jurindietioii
over per i ois noon if, are i s :entially different nnd in-
dept M'lent. Tile former is general, and is given in
the cliusy r tier red to. Tire I titer is special, nnd
in given in another clause, an> confined to the fed
eral district, and to •• places purchased h\ consent
of the legislature of the State, in which'the name
shall he, lor the erection of torts, magazines arse
nals dock yards and other needful buildings."
2 The power “ to regulate commerce with for
eign nations, ami amnu j the several {Stales and with
the Indian tribes."
It. will be recollected, that tlm subject nf tho pres
ent branch of tho enquiry is. where tho ultimate ju-
ri*diction over Hie I ndian tribes resides. Is it given
to the United Milos Wy this clause ? Certainly not. vices of
This is a power to regulate commerce, and not to, ties; and
exercise jurisdiction. Therein no necessary con- ship and i
nexion between the I wo subjects. And the effort in I cessary to
this instance to unite tli. in. leads to the one or tlie j which no
other of two absurdities Fither that Congress have! xvilh whit
jurisdiction over foreign nations, or that nntirelv pied.
different meanings nro to be given to the sameword: j Such was tlie state of things at the period of the
in tlm same sentence. Tlie power granted, is to J Revolution. The struggling colonists found tliem-
regnlate commerce. With whom? With foreign selves engaged in a desperate conflict, which requir-
nation* and with I lie Indian tribes, and anion <r the e.l the united wisdom, strength and resources of'all.
8tat«R. Can any reasonable version be piv-lTlio British called the Indians to t
en to this sentence, by whic.lt it shall in fact read—I true to their character and institutions, they came
Cong reus shall have poxver to prescribe ihe mode in upon the summon c To resist hath was n common
wllioh commerce shall be carried on with lorei. ; object, nnd to se.ver tlm alliance, was the obvious
nations, and ainori.r the several Flates, and with tun dictate of prudence. Hostilities were therefore
Indian tribes, and shall also have ju. isdmiion ox r prosecuted, negocutions conducted, nml convention
the Indian tribes. Tim greatest inliludinarinn in al arrangements mado with them, hy tim c.-ulral
nstilutinn will RvNuvelv government. But all this was done as a lyalter of
I'or this interpretation. W e need not st-;> necessary d» lunce, and not hy virtue of any save-
•: ile ihe me n ( of the w h the Indians, for 1
or less power over tlm suit, expressly
lion.
th the extinction of
that p-TiM u of jurisdiction, arising out nf the duty
of tn-r.al defl line, will also tt-rmmate the power of
r* i' i:i:i<r commerce. Tiuil power, it will he rec-
( ',' 'ct. .!, is to regulate commerce with the Indian
hi- a. and not Willi the Indian*. They will then
,v ise to lie •‘tribes," or to take the definition instead
ot the t,eiun. will cease to he, hi thi language ot tlm
an lexicographer, “ a body nf rude people,
under one leader or government; us the.
f the Fix Nations, tlm Beneca tribe in Amer
ind xviil become citizens, wit!: such “ privile-
! dif inilitii H :is the laws of tlie rcsjiective
’al! Ft ms may provide.”
d to shew the
urselves, when differing
from this most able and venerable man, who has ex
pounded nnd illustrated the jurisprudence of hie
country hy n series of decisions, not less remarkable
for their legal acumen. Ilian tor their depth of re
search, nnd the ndmiinblo powers of generalization
•hey display. Put this point is so essential to Hie
the constitution, the pregre-sof tiie discussion, tii.it wo could not pass
isdiction over these it ever in silence.
V.’e do not invert! rate the na'nre of these rnslru-
:n. nt.*, ».\ ith a view tonscert iin tln-ir validity. This,
we admi'. Folly and hu sly. But to* prevent,
the exclusion if n conclusion. To prevent any in
ference froni thf-ir/-.'///.' which would in effect de-
- strtlm exi.-th ; ; velations nf tiie partiep. Relations
n*» I ::i ; "1 «>: Stale juris- whose print le d operation is undisputed, and which
t:i"d tin-1.': md two centuries of intercourse,
cannot "X.w- ■: the t: u.i d-mlriiie ns well as it
wa . e.\pu s i.t (ilient, where this very objection
as urged end perlinaniomdy repeated. “Tire
treaty of Grc.-nville." ny the Ameiienn Conimis-
Kinners, “ neither t. (from tlie Indians the ri*/|»t
which they h id not, ol'.-e!ling lands xvithm the juris-
disctimi of t’. .• United: tates, to foreign goverrnonts
subjects, n r ced -d to them l!.e:n tlie right of ex-
‘•raising exclusive jurisdiction, within th boundary
(Iccfarntorij of thej
\\\
ni! assigned, u tens in ere'if dcclar
c hue. in relation to the. parties, founded Oiuprinc'ipla
• ■
■:*(ticli.T, (
.:;"d Matt
s : '
t jurisdiction belongs to the-! J
sew; Mate goverimr-nts, whensoever, and Imwsoe- '■ <<
ver they may eli<»*>*e to cxeic.im it, it is necessarv \ i
now to enquire h »xv far tlm e.xercis,
l»v thi- Ftale of (iemgia m contro’l
ited ! x any convent! m il arrui/eumn
the Ci
Ii t
tliis right, and if Mi-li engi
tlm sc pe of its legitimate
inainshut to regret these slij
them ; even if tlte
which must attend t
the Indians i
t places of residence
Hates have con
not fulfil with
they
Whether it giv
:r presen
, the Uni
ed obligations which theV
violali m of preceding and
must then compensate the Indians, who are the in
jured party, to llieir full satisfaction, unless their de
mand is upon the face of it, exorbitant nnd unrea
sonable. If it is, tire commutation should Ire meas
ured by Hie party, thus involved in contradictory ob
ligations. in a spirit of liberality, nnd tendered with
a full explanation of the circumstances. We think
however, it will be found, that neither of these nl-
.. the •
uncle with toe Indians m iv be executed, fa’rly and
in good fa Hi. and c - Henlly with the jurisdiction
al authority of vim .' ate ol Georgia.
The extension of tlm la want the respective Stales
ov r the I mi -.’is involves their personal and politic- j It is clear IV
:il rights. Tire former, under any State of things,
xv II no if M'.»t he amply secured,and all proper rights
mid remedies extended to them. How far they shall
participate in political privileges, must depend on
I .-ir adv.ai: e neiit in improvement and knowledge.
ject t
uless it .
r, or over the
e, it gives none .
nte persons engaged
•r tire I mil ms Hieoasclv
»ver Urn Lnglisliman a
ex press ly
which declare, “ that Congress shall hav-.- t
and exclusive rigHit of re; minting tim trade in
aging all the affairs withjtlm Indians not men
f confederation,! While pissing through that probationary situation
prerit ustij ami unirersnUij rreognised.’
Tire p s ti n of the Indians is no doubt, i
b " m For",-, presents null'ing similar. Tod_..
: ‘‘’ i f intercourse, which have I
tl t in ad pted, shall i reconciled with thu received max*
Ml of pull!.c law, which govern tire relations of
1 1■ ! and ind';; end I t Iialiomf, is to reject the
■ ivernments, who have
•' v r ■ ol th s right founded colonics in the now world, and re to sacrifice
coiitr..'!; d «.r pr...,the t. te inter s!: • f B-.ciety to a definition and a de-
• • ' • 1 1 •" v. i.:i | dnetion. \, . :.rei.' t now*called upon to discuss ub-
: sti "i i rhls, but to investigate the actual stale of
ii.'-ons'-ienl X-. ill, tilings. •..-•els have, for a century, been formed
m.M.ts were within | with the Indian.*, for the purchase of their posses-
utiiority. t'"'«liing re-, snry righlu. At first. Hie equivalent given scurcely
hit sons and to , xt-cule deserved the name of n consideration. Dr. Frank*
tin* inconveniences,, lm says, na K..lm (he Swedish traveller states, that
nt establishment ol .Rhode Island was purchased with a pair of specta
cles. And an examination of most of these bargainn
before the revolution, will show, that the presents
usually "iviTi, fur lln ru was in limt, nn nntual price
;;rr: "'n. wer" .'iuir. lv iliaprnpnrlinnrd tn (lie vain"
nt; the land. To the United Stains b,.longs the credit
"f having intrndncud the svstem of annual pay.
incuts, calculated, if v. isely applied, hy tlie Indians,
tn relieve their w iuts f»r an iudulinil" period. Tlicse
ooinpacte wore ternn .1 treaties, not in Ihatacci-ntation.
of tho word, hy which it is applied to the adjust
ment oi d,tlo: iu.■ h between independent nations,
hut in its more (jen era I meaning, which e.deiids to
all arrnnycindtls for” f.nnineajjreoments" between
lies, ns w, say, a Ir. atv is on tho carpet, a treaty
■ nn.i as the treaty of llolelnn use*
It says, the Cherokee* “ shall not
y with ” individual* of any Slate.”
the Constitution of the llritish Em-
i already explained, that thefe conl-
S. the (tid.mial (.'..vernors or Commis-
Itever sulniiille.l for the ratification of
not iie treaties, in the
sente of thtferm. The practice came .
previous habits
ess ire, they must remain in the slate
described by ll)nhy Judtje Kent.—
y of the Suites. I'mvideri, that the l.-pislative j And witli ut suf.Vrin; the question to he influenced
ilhin its own limits he not in-
v » nt 'onnl recognition*of tiieir ,...
been any chaiieL J'i'- ',' """"nulled, nor has there
the,11, eieep. ' "old el,« jariediotinn over
The r.tl, Art 'i f J , l *ieir eoudition."
each nf the,,, VviVi' ‘ ' Il “ «•»* Nation* and
United State, a i,'." '■ r “ n ‘ ,w lo the people of tile
the free use „f m" p a»"a;e throtioH their land., :n„l
and within tb. '- . ors n,,, l rivers adjoining,
. be., n Rjn-ctivo iraclji of land, fin th«
t u«y xvtTP w brave and ka high spirited as they wore the pv-ple nnd property of the country
«• powers can scarcely g«» i.e
After recapitulating certain
of this : stitution, xvliich cede to tire Ge
1 xvere ready to repel by arms every attempt
inevitable
MntA.il things? The Europeans were under tire I rights, incompatible with tire absolute sovereignty
necissiiy either of abandoning tire country, nnd re- of tlm States, .Mr. Justice .Mclmun asks, “ tins not
iinquishmgUieir pompous claims to it, or of enforc- tire power been asexpresslv conferred on tire Feder-
by tire sword, and
iug iiioio claims by the sword, and hy lire adoption j nl G ivernment, to regulate intercourse with the In-
1 I ,r ‘» c, P*« adapted lo the condition of a people, disns, as any of Ihe powers above
and Hie power of tire Union could alone
Hy contend with them, “To provide lor
welfare" was one of the great objects for
of which the new government
instituted. In tho exeoution of this paramount
duty, important relations necessarily arose between
them and tho Indians. Hostilities were continued
or commenced, and it was not until the decisive vic
tory of Gen. Wayne in 1721, that the poxver of tire
d notions, not applicable to lire r; !a
n ; 11 ■ of-lire parti, s, m r by thase romontic dclinea-
t: m* of Indian character -ami condition, more credit-
» lo to the heart than tire judgment, which have
unsled many worthy men. let us enquire what must
be the act nil effect of subjecting to lire ordinary ju
risdiction of the laws those tribes, which have ul-
ready commenced Hie great career of improvement
and made, as is represented, such progress, as to
qualify them for the task of self-government. To
mu*, who is ignorant of the controversy, which has
recently arisen out of this subject, the answer xvill
appear disprop rtioned to the fearful consequences
xv inch, it i* apprehended or alledged, will result
from this chan no. Tins: half ciriRzcd Indians will
become, subject to the common lute of England,
with such temporary disabilities ns tire respective
Mate Legislatures may impose, till they are pre-
pire, os I
pacts, form.i
sinner
from them,ind it is equally clear,
United Slat4, neither tire form of t
n r the pnrs* ol ratification conferred, hy rnero
implication,! tent with His whole tenor
of our intern urse witli tlie Indians, at variance with
lire rnimerm provisions • »f our own statute hook,
•and irrecoiucable witli lire form and substance of
the *tipula:’ is in the instruments themselves.
We appro h now the material enquiry in tire case.
Do the trcii-s, wbie'< have been formed with tho
Clrerokees, jonUin »tM>c!aiions incompatible with
tiie exercise of jurisdialinx |, v the Flat,) of Georgia
..verlhe.0 i.disus ' 1 but <|jey establish boun3s-
rie* of pnsiMesiun*- """ 8l,| i(re or “ allot'' to tlie
Indiun* their “ iiunttnjr grotW" .. | a „ da .. &e .;
or in other words, a'.l those «Vh»e.tuary rigl.ta, ne-
cessarv to llieir subu.tence mlfieir usual mode of
life, ail f.r .1* the relative oblivions of the United
States and Guorgiaiiermitted linforiner to establish
and secure them, will not be disited. Jt is the ju
risdiction over peisons, and nothe disposition of
property, which iva are now invAptliiijr.
A succinct review of tlie treat* with the (
pared by education and habits for its full enjoyment, kccs
)•, but ill Iking it, we j.lacu