Newspaper Page Text
& INMANS’ ADVOCATE
m
NEW EOHOTA, SATURDAY SEPTEMBER 17,1831.
V3i>. tV.~HO.tn.
m
hHITIII WKEKI.V BY
jrojrN OAAUY,'
At tslKLaf paid in advance *8 in six
Months, 50 if paid at the end of the
year,
who can read only the
lagttage the price will be #2,00
>,(rM jn to by paid within the
subscription will be considered as
Continued unless subscriber* give notice to
tbejontrary before the commencement of a
new year, and all arrearages paid.
/Any person procuring six subscribers
and becoming resjionsible for the payment,
•hall. receive a seventh gratis
letters addressed to the Editor,
will receive due attention.
*,»yo.J4Du»jiEC,«a
~HTA»*V* •UCBAU 1b Cat.I.
IiJLatY KTA D#F 0>0JBU
I'irg TEJ90*P
TAOsA TB D0J*aSK«a> KT
Q04 CHOJIUI K4<iM Di.lAXFJS: tb ytv
D0J4Ai*<ft.4, 0-Va 049 O>0JBX M84-
owyz o 8 a,n jaoAJay, ww* dv-4
©•ojhu rtJBr*, tcpz Tcao-r* do-
jJiStUftX. klVlZ 049 Q*V4r WVJB-
V-nt oa.htAFoea.
on, purchasing any lands inhabiH
• ,f 'lodfl
or
speech
•/ the Hen. Jabez Huntington, Repre
sentative Jrom Connecticut, delivered
in the House of Representatives, til
ting ae in Commitles oj the whole, on
the Wkj$r the removal of the Indians,
Tuesday, May 18 1830.
[Comtinumd.]
In 1777, a treatik of peace was
made between South Carolina and
the Cherokees, to which Georgia
waa a party, in which the . commit*
sioners of both states and the Chero*
jtees exchanged their full powers, in
which a session is made by the Cher*
okeea of all the lands east of the Una*
«aye mountain, to the state of South
Carolina, as having been acquired
and possessed by that state by con-
3 uest; and, in the 8th article, it is
eclared, that the hatchet shall be
forever buried, and there shall be a
universal peace and friendship re-es
tablished betiyeen South Carolina, in*
eluding the Calalvb^and Georgia on
the one part, *and thfc Cherokee na
tion on the other,} there shall be a
f eneraloblivionvC injuries, the con-
ractfng^)artics shall use their utmost
endeavors to maintain tho peace and
friendship now * re-established; and
the Cherokees shall, at all times, ap
prehend and deliver to the command
ing officer at fort Rutledge, every
|»e r *ogjnhite or rod, who, in their
Itation^HIttlcin^iits, shall, by ary
Bieaus, endeavour to instigate a war
by the Cherokee nation, or hostility
or robbery by any of their people, a*
g|UMt or upon any of the American
dl(||,or subjects thereof. Can Geor
gia enter into a treaty with her own
citizens, give peace to tliosevwho are
•ot enemies, but traitors? srfe *
In 1783. another treaty walftftailjdi
between the state of Georgia and the
Cherokee nation, by which peace was
pftablUhed, end a permancut bounda-
ly fixed.
ft is unnecessary to go farther.—
The acta of Georgia furnish unequiv
ocal evidence of her acgMescence in
the doctrine, that^the Indian tribes
within her territorial limits, offight,
Might maintain the unmolested occu
pation ef their lands. I will ndw ad
vert to the acta and declarations of
tbn eonfemrated states’, and it will be
teen that they entirely coincided, ou
the subject of theAndian title, with
r principles assumed and acted on
the crown and the colonies,
la January, 1776aCongre*s resolv-
od, that no person Jnall he permitted
to trade with the Indians, without li-
c^nao from onn or more of (he com-
Missmner^pf each respective depart*
In September, 1785, n proclama
tion waa bailed by the United States
*e Congress assembled, prohibiting all
|eirgoM from making any settlement
claimed by the Indians wilhoiK*the
limits or jurisdiction of any particular
state; and declaring all such purchas
es, without the express authority of
Congress, void.
lu October, 1783, Congress re
sted, that u convention be held with
tne Indians in the northern and mid
dle departments, for the purposes of
receiving them into the favor and pro
tection of the United States, and for
establishing boundary lines of proper
d
in March, 1785, Congress resolv
ed, that a commission be opened for
treating with the Cherokees and all
other Indians southward of them; and,
in June, 1780, Congress directed the
commissioners, who were to huld this
treaty for the purpose of obtaining
from them a cession ol lands, to make
such cession as extensive and liberal
as possible.
In August, 1786, Congress passed
an ordinance for the regulation of In
dian affairs, the preamble of which
states, that the safety and tranquilli
ty ot the frontiers of the United
States depend, in some measure, on
maintaining a good correspondence
between their citizens sn^die several
nations of Indians. This ordinance
regulates the intercourse with the
tribes.
In Fletcher vs. Peck, (6 Cranch,
pp. 142, 3,) it is said, “The majori
ty of the court is of opinion that the
.nature of tbe Indian title, which is
certainly lobe respected by all courts,
until it be legitimately extinguished,
is not such as to be absolutely re
pugnant to seisin ip fee on the part of
the state.” Here is a complete rec
ognition of a title; it is not repugnant
to the idea that the state may be
seised in fee; because the state has
the ultimate dominion, the right ex
pectant upon the determination of the
state in the Indians; so long as the
Indians occupy, the right of the state
is dormant; it cannot be exercised.—
It is only in the event that the occu
pancy ceases, or the right to occu
py becomes extinct, that the ultimate
right of the state can be enforced —
Judge Johnson, in the same case,
(pp. 146. 7.) says, the Indians have
the absolute proprietorship of the
soil. “The uniform practice of ac
knowledging their right of soil, by
purchasing from, and restraining all
persons from encroaching upon their
territory, makes it unnecessary to in
sist upon their right of soil ”
But it reserved to the court, at a
Intter period, to give this subject a
great degree of attention, and to in
vestigate, ascertain, and declare the
nature and extent of the-Indian title
In November, 1785, the treaty of This was done in 1823; and the case
Hopewell was made. Its provisions of Johnson vs. M’lntosh (8 Wheat.)
need not bo referred to. i furnishes us with the result, iu that
It will be Seen, that all the acts of case, the chief justice, delivering the
the Continental Congress were pred- opinion of the court, says, “The ori-
icated on the Assumed basis, that the ginal inhabitants were admitted to be
Indian tribes had a just and legal light the rightful occupants of the soil, with
to the occupancy of their lands, in-| a legal as w ell as just claim to retain
definitely, and that the only subsist- \ possession of it, and to use it accord
ing light of the government to them, : iug to their oivn discretion. While
was what has heretofore been stated , the different nations of Europe re-
—the exclusive right of purchase, spected the right of the natives as oc-
and the ultimate, contingent light in cupants, they r.sserted the ultimate
fee.
_ dominion to be in themselves, and
But the proceedings of the govern- claimed and exercised, as a conse-
ment, after the adoption of the con- j quence of this ultimate dominion, a
stitution, if valid, put an end to eve-1 power, to grant the soil, w hile yet in
ry question regarding the title of the ' the possession of the natives. These
Indians. In the treaty of Holstou, j grants hare been understood by all to
made with the Cherokees in 1791, j convey a title to the grantees, snb-
the seventh article provides, that the ' jeet only to the Indian right of occu
lted States solemnly guaranty tojpancy. It has never been doubted
the Cherokees all their lands not ! that either the United States, or the
thereby ceded. When this treaty | several states, had a clear title to all
was transmitted to the Senate, it was the lands within the boundary line de-
referred to a committee, consisting 6f j scribed in the treaty, subject only to
Mr. Hawkins of North Carolina, Mr. the Indian right of occupancy, and
Cabot^ of Massachusetts, and Mr. that the exclusive power to extin-
of Connecticut, who re- guish that right was vested in that
ported* Amoiig other things, that they | government, which might constitution-
had examined the treaty - , and found
it strictly conformable to the instruc
tions given by the President of the
United States, ami that those instruc
tions were fouuded on the advice and
consent of the Senate, and that the
Senate advise and consent to the rati
fication of the treaty, Various other
treaties with the saide, and with oth
er tribes, contain a similar provision;
and if these treaties have any binding
force, it is needless to inquire, what
were the rights of the Indians before
the conclusion and ratification of these
treaties, or what were the rights of
the government. The solemn com
pacts contain a promise of security
in possession of their lands, and give
them a title, if they had not onn be
fore. How far it was competent for
the United States to enter into these
stipulations, I shall not, in this stage
of Ilia discussion, inquire. That I
shall consider, when I refer to them,
as proqifcg* that the states are ox*
eluded From making any legislative
enactments to effect them. *
I have now considered (he nature
and extent ofjhe Indian title, as re
cognized by flic crown, tbe colonies,
the state/, the Continental Congress,
and the United Slates, since the a-
doption of the constitution. On (he
subject of this 11110,111 only remains
for me to show, us I promised to do,
that the title, as thus acknowledged,
has received the sanction of the judi
cial department of this government.
ally exercise it.” “it has never
been contended, that the Indian title
amounted te nothing. Their right off
possession has never been questioned.
Ihe claim of government extends to
the complete ultimate title, charged
with this right of possession, and to
the exclusive power of acquiring that
right.”
After these adjudications, confirm
atory of all previous practice, legisla
tion, and treaties, and giving to that
practice the solemn sanction of the
united opinion of the bench of the su
preme court, can !t be doubted, that
the title of the Indian tribes to the
lands, they occupy is practically as
complete, perfect, and absolute, as
that of any citizen of this country to
the farm on which he lives, and which
lias descended to him, after having
been in the occupation of father and
ion, from generation to genet alien?
Can the opinions and statements ad
vanced in tit* report be sustained?
“That the pretensions of the Indians
to be owners of any portion of the
•oil were wholly disregasded by the
crown of England;” “that, where
there was reservation of any part of
the soil to the natives, they wore left
to be disposed of as the proprietors
thought proper;” “that one of the
expedients of the colony was” merely
“to appear to do nothing which con
cerned the Indians, either m the ap
propriation of their hunting grounds,
or controlling their conduct without
their consent; that this was the gen
eral principle of action; and (hat, in
all the'acts,. first ol the colonies, and
afterwards by the states, the funda
mental piiuciple, that the Indians had
no rights by virtue of their ancient
possession, either of soil or sovereign
ty, lias never been abandoned, either
expressly or by implication;” “that
the Indian boundaries defined by
treaties, were merely temporary, that
the practice of buying Indian- titles is
but (he substitute which humanity
and expediency have imposed, in
place of the sword, in arriving at the
actual enjoyment of property, claimed
by the right of discovery, and sanc
tioned by the natural superiorly allow
ed lo the claims of civilized commu
nities over those of savagfe tribes;”
“that the principle was adopted, that
they had no permanent interest in
their hinting grounds;” “that trea
ties were but a mode of government,
and a substitute for ordinary legisla
tion, which were from time to lime
dispensed with;” “that the tribes
were indulged in tbe ‘partial’ enjoy
ment of their ancient usages;” “that
the essential point in the policy of
Georgia was, that the Indian teserva-
tions should be gradually contracted
within such reasonable limits, that no
part of the country should continue
uncultivated; that her policy, jn this
respect, was a part of her rights, and
that any thing which tended to defeat
its operation was a deprivation of
right.” I will pursue these quota
lions no farther.* They arc negatived
by UiMory, by authenticated lecoids,
by universal usage, by legislative
acts, and by judicial determinations.
Having thus disposed of the ques
tion, what is the nature and extent ol
tbe title of Indians to the lands which
they occupy; and having shown, I
hope, that it is one which, for all
practical purposes, is absolute, and
limited only by the right of tbe gen
eral government, of exclusive pur
chase, and of tbe reversionary inter
est in fee; I proceed to inquire into
and answer tbe question, Have the
states, iu which these tribes reside,
the power to extend their legislative
enactmeuts over them, and thus to a-
bolish, among the tribes, the power
of self-government, and the laws, u-
sages and customs, by which their
affairs, from time immemorial, have
been regulated? If I do not very
much mistake, an examination of this
subject will result in an entire convic
tion, that ne sacli power has ever ex
isted, nor does any such power now
exist.
The advocates of this power insist
upon the right claimed and possessed
by the crown to exercise it while the
United States were colonies; that,
by the declaration of Independence
and the treaty of peace, this power,
this right of sovereignty and legisla
tion, w’as transferred to tho states,
as sovereign, independent communi
ties; that it has never beeu surren
dered by the stales to the federal
government, bq| is rather guarantied
and secured to (hem by the constitu
tion under which that government is
founded
I take the fmerty to say, that, in
my opinion, but one of (hue proposi
tions can be sustained, ariJreven that
is by no means free from doubt. I
refer to that which assumes that the
rights of sovereignty and legislation
(whatever they were) became vested
in the stales individually, upon their
becoming independent of the crowrn.
To spy the least, it might be contend
ed with some plausibility, that these
rithtt became vested in the confeder-
ated union first, and afterward*; in
theAtevernment formed under the
Ion, rather than in the in-
ary lines described in the treaty,
subject only to the Indian right of oc
cupancy, and that the exclusive pow
er to extinguish that right was vested
in that government, tchieh might consti
tutionally exercise it.” Hence tho
conflicting claimeof the United S.ates,
and the individual slates* to unappro
priated lands, which wtf|e finally ad
justed by cessions floor tbe bitter to
the forme*. But I do not propose
to agitate or discuss that point. My
attention will be directed todJie oth
er propositions necessary t<0Ve sus
tained by the advocates of the rights
of the slates.
If Ihe crown had a lawful right to
exercise jurisdiction over the Indian
tribes without their consent, it must
have been deiived either Train discov
ery or conquest.
As to the latter, (the right by con
quest.) it is very obvious that it has
no application to these tribes. There
are two least ns w liich would seem lo
be conclusive on Ihe subject. One
is, that no conquest was ever made of
them; but if there ever was a right
by conquest, it is very clear, that it
was surrendered by the crown, in the
treaties which were made with them,
lu these compacts, the Indians were 1
regarded as possessing the power to
make them; they were treated as
lawful and necessary parties lollum;
their claim to territory was acknowl
edged; boundaries were fixed; and
pledges given (hat no interruption, no
interference with their respective
territorial limits, as settled by these
treaties, should be allowed. To as
sert an unlimited right of sovereignty
and legislation iu the crown, by th#
force of conquest, is utterly incon. is-
tent w ith the admitted necessity that
the Indian tribes should conclude
treaties with the crown, with the
circumstances under which they we:re
made, and with ihpir explicit provis
ions: Hence the Supreme Court say,
alter speaking of the wars between
the whites and the Indians, that the
law which regulates, and ought to
regulate in general, the relation be
tween the conqueror and the con
quered, was inapplicable to these In
dian tribes, The resort to some newr*
and different rale, better adapted te
iho actual state of things, was una
voidable The one adopted was, u*
the Indians receded, the Imuisowhich
they thus left unoccupied were par
celled out and granted by the crown;
and as to those of which they retail*
possession, tlie Indians residing oii
them were to be considered as occu
pants, to be protected while in peace,
but “To be deemed incapable of trans-
dividaafstates. Hence the cautious
remark of chief justice Marshall, (8
Wheaton, 585,) “It has never been
doubted that either the United States,
or the several states, had a dear ti
tle to all the land* within the bound-
(erring the absolute title to ott
As to the existence.j)f this rijjjllt, ns
emanating from discovery, it i» con
tradicted by the best writers on in
ternational law, by the opinions of
the most distinguished lawyers nnd
statesmen of Great Britain and this
country, and has been repudiated by
Ihe Supreme Court of the United
States.
The rights acquired by discovery,
on the part of (he untion making it,
are, simply, the exclusive right te
make purchases of the native tribes;
to make settlements, nnd to occupy
in pursuance or pui chases wheft mde;
and an ultimate right in fec,^ whenever
the (file of the Indians shall become
extinct: and even these righto may be
considered ns peculiarly and solely
confined to the relations subsisting be
tween this country and tbe aboriginal
inhabitants, and do not exist, and aip
not applicable to the car of any
other community of native tribes.—
What is called the sovereign power
of the nation discoverwAf country,
consists in the pamcnTars aft we
mentioned. This attribute of sover
eignly, the sole right of purchase, and
the ultimate ownership in fee, grown
out of tho fact of discovery; and. so
far as it exists, it stmuch from
the sovereignty and independence or
the Indian tribes. But ^ power t*
o
at
•8M
%
4b
«