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vifAfOH A'p; AGB&eWfcimHUEi ..ARID TUTTu
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JMsge (laylmiV
THE STA FE vs. CANATOO,
A CIIKHOKU'. INDIAN-
Committed to Jail upon a charge of digging
gold in that part of the Cherokee Nation
fin* an yrt ceded 'at attached to the count;/
of (l.cinnrtt, for the purposes of cietl and
cri mi:, a I j a rind i cti on.
Tiio prisoner was brought up by Habeas
Ooipus, an-! his discharge moved for upon
three grounds. Ist. Defect of commitment
”and. There was no law making the offence cri
minal ; and Il<l. If there was, it was contrary
to existing treaties, and therefore contrary to
tha Constitution of the United States.
There is no force in the first objection, and
consequently it needs no consideration. In
the 2d the Court admits there i some room
to doubt. And here it will take occasion to
say that as this is a very important question,
involving rights cf the highest character, both
in relation to the State and the Indians, and
as there should exist the utmost harmony be
tween tlie Legislative and Judiciary branch
es of government, both aiming to discharge,
with fidelity, the high obligations committed
to their trust, and socking to accomplish a
common object, the welfare of the communi
ty, it will bo strictly pro; •v and evince a be
coming respect foj the Legislature, for the
Court to refer the act back to that body with
its views candidly expressed, on both of the
last mentioned points, with a hope that such
a course nny prevent any future collision.—
And this is considered the more discreet and
necessary, as this case, under its present ar
rangement, is not of such pressing urgency as
to require a hasty decision.
Upon the 2d ground then it will be neces
sary to bring the act of the last Legislature
into view. Tire substance of its caption is
is “take possession of the mines within the
Cherokee nation, and to punish any person
or persons who may he found trespassing up
on said mines.”
The preamble of the law asserts that the
mines “are of right the property of Georgia”
and states that “great waste has been com
mitted by the trespasses and intrusions .of j
numberless citizens of this and other States,
taking and carrying away large quantities of I
gold from said urines —-for remedy whereof
Be it enacted Ac.” Thcist. see. authorises
the Governor to take possession oft.ho mines
and to employ a force to protect them “ from !
all further trespass.”
The 2d. sec. appropriates a certain sum of
money to carry into effect the foregoing sec- 1
tion, and the 3d sec. declares that “ for the
better securing said mines from trespass , that
if any person or persons shall be guilty of
digging for gold, silver or other metal upon j
•said mines, unless authorised by lair, ho, she
or they shall be guilty of a misdemeanor, and
upon conviction thereof, shall bo sentenced
hard labor in the Penitentiary for and du
ring the term of four years.”
The 4th and sth sections inflict a like
punishment upon any person who shall em
ploy any white man, Indian, negro or mulatto
<o dig or carry awav any gold, and provides
C.iatThe act is not to be so construed as to
confine a slave irs iho Penitential)’.
The 6th section confiscates all slaves and
<u!hcr property employed in trespassing on
said mines, and the proceeds of their sale to j
bo paid ints the Treasury. The above is an
analysis of as much of the law as is neces
sary for our present purpose. Though the
Caption is a general one, and applies to ad
persons, yet it is contended that it refers-only
to trespassers, and that as the word trespass
is a legal and technical term, it must be tc- 1
• reived according to its legal meaning. “ Tres - 1
yass (says Blackwfone,) as relates to land, sig
nifies no more than an entry n another man's
ground without a lawful authority and doing,
some damage, however inconsiderable, to his
real property.” And it matters not whether
the person in possession is “ landlord cr ten
ant” whether lie has an “U'so’ute or qualified
property” in the promises, eul ’T has his right
of action against his trespasser, c .Lsequently
no man can be a trespasser upon land of which
die has the use and possession or which bcier.gs
to him absolutely orfor adiinited time. The.
applying this doctrine, St is said an Indian
cannot be a trespasser upon lands of which it
j-acknowledged, by treaty, lie has the full
tree and undisturbed possession.
-Again, it is contended tbat-in aid of the a
l.ovc principle the preamble of thedaw is very
.strong if not conclusive. It states that great
waste have been committed by the trespasses
and intrusions if whom ? Not the Indians—
but numberless citizens of this anJ other
ritates.” Now Indians ate not citizens and
•trti r have been so considered. The pream
ble proceeds to declare “for remedy whereof”
"What mischief is to he remedied ! The
■irespaarea ami intrusions of numberless citi
r/x of this and otiter ■'■fates upon the mines.” ;
Then comes tho enactngdause which states
“ for the better securing sai l minis from
tresspass, all persons guilty of digging gold'
*;hall incur the aforesaid penalty '‘■unless au
thorised by hit." to dig. Now here is room to ;
-contend again, that it was trespass in its le
gal sense, tiio Legislature intended to pun
ish, and that as n vas well known no one j
could by any possibility, according to exist
ing laws, be “authorised i,” Jaw” to dig for!
gold but the Indians, they having the constant
--..-tl uniform law of treaties ns wed ns tho in- !
trreourso law of tho United States to protect j
fittm i:i tho possession of their ut.ccfh d 1
lands, theabove expression was intended as :
st saving- in their behalf- It has been urged
-arid some facts stated, which occurred at the 1
pas-age of the 'mw, to-explain the reason ofi
"the above proriso, hut l pr.-sirme every one ,
3, now* that Courts of justice cannot tran lout:
of the law fur any explanations of its mean
ing; it would go to establish the monstrous!
j.r. -tic; of ascertaining the sense of the Lcgis
u.’rst'i by oral testimony, and thereby place;
Cm L-ws of tli-J land in the most dubious and
lluctu'V-ing condition.
Again it is,asked, if the above section was
intended to rtnbnipe ex cry person who should
dig gold where was tko necessity of tbo 4th
geetiou which imposes the same penalty upon
miv pr ison v. 100 should employ a white man,
liidmn, neao, or mulatto to dig gold? If it
n c.mtcaded that these four descriptions of
person w< tc excepted from the pcnaltv of
the third section because the white man allu
ded to was one who should not be a citizen of
this or any other State, but who claimed the
rights of an Indian as a descendant, and thcrc
: fore for greater particularity common to the
law, was described as a white man. That to
employ him or the Indian should be a crime
in the employer, for if it was criminal in them
to dig gold no one can or will believe they
would suffer themselves to be employed in a
business that would send them to the Peniten- i
tiary. And this idea is much strengthened j
i by the fact there is an after provision
[ which exempts slaves from Penitentiary
confinement and subjects them to confisca
tion, as an additional punishment to the
employer.
i These are the doubts thrown around this
j law, and the Court is called upon to reaiern
j her the rule of construction to be found in
j the English law, which is our law, and which !
jit it ever existed in any country, ought to
i exist in this boasted land of liberty, viz.—
| “ It was one of the twelve tables of Rome,
i “ that whenever there was a question be
j '* tween liberty and slavery, the presumption
| “ should be ou tiic side of liberty. This ex
j “ celient principle our law has adopted in the
j construction of penal statutes, for whenever
j “ any ambiguity arises in a statute introdu- j
j “ ciug a new penalty or punishment, the dc- j
(“ cision shall be outlie side of lenity and |
J “ mercy ; or in favor of right and liberty : or
i “ in other words, the decision shall be accord
-1 “ ing to the strict letter in favor of the sub
| ject. And though the Judges in such cases |
I “ may frequently raise and solve difficulties j
j “ contrary to the intention of the •Legislature,
| “ vet no further inconvenience can result,
j “ than -the law remains as if, was before the
| “ statute. Anil it is more consonant to the
j “ principles of liberty, that the Judge should
j*• acquit whom the Legislator intended to!
! “ punish, than that lie.should punish whom I
I “ the Legislator intended to discharge with*
j impunity.” J do believe it was file intention j
of the I eg Lint lire to bring the Indians within j
I the penalty of the law, but I candidly own 3!
; arrive at this belief more from my knowledge j
j ui the history of its passage, than from the!
i law itself, aud that to one entirely unacquaiut-!
ed with that history there would be much am-1
biguify in its true object.
Relieving then as 1 do, and that the Legis
lature lias perhaps not given the subject that j
full and deliberate investigation which lie- j
longs to Courts of justice, and which their:
supposed knowledge of the Constitution, laws
and treaties of the land, and the constant am) j
familiar use of legal principles in expound-!
ing the same, enables them to bestow on si ich I
I will proceed to present myopia :
ion on the 2d ground for the future consider-1
at ion of the Legislature.
In the hegining of this investigation I .lay ;
down-the following principle that there never;
have been but two ways of acquiring Indian !
lands, — by force and by purchase. 1 add, i
history does not furnish a single instance i
where one foot of Indian lands lias ever been
taken by force, by the United States, espc-'
I eiully by Georgia, and this redounds greatlv
to the credit of the settlers of America, for
Vattcl, the licet \vi iter on natural law ob
j serves, “that the cultivation of the soil was
jan obligation imposed by nature upon man-,
j kind, and that the human race could not well
j subsist, or greatly multiply, if rude tribes,i
which had not advanced from the hunter
! state, we’re entitled to claim and retain all
i the boundless forests through which they
i wander. If such people will usurp more
j territory than they can subdue and cultivate.,
j they have no right to complain if a nation cf
cultivators puts in a claim for a part.” 3
Rein’s Cum, 312 and \ ai. 1, b. see. 81.
e Jilted further add-, “people have not then
j deviated from the views of nature in confining
the Indians within narrow limits,” hut praises
the moderation of the American settlers for
! purchasing from the Indians what they had a
right to take by force. All that the first dis-
Icovcrcxs evi riJaimcd was the riglit-of emjnre,
and the ultimate right o (dominion over the
Territory which they took the possession of in j
right of their sovereign, and as against uli |
other nations this right was rigidly enforced. ]
This right of empire err of government has !
been fairly dcduccdintothe btatc of Georgia,
a.:d I consider "that question as at rest. 'J’he
right of domain or soil is also in Georgia, hut
•subject to a claim or title offlid Indians which
much he extinguished in some wav or other!
before Georgia’s absolute right wifi accrue ;
i’he question is, how is this to he extinguish-!
ed ! is it to be by force, or by purchase 1 — 1
If by force, is tkn't’oim to understand that j
the law cf the last Legislature is intended to j
i d’, ct that purpose ? Is it to understand that j
the‘Stale renounces the policy pursued by her-!
self, her sister Stales and the United States,!
for the last three centuries, ntid throws her-!
seif upon the original right which Varied al- j
frits she had at the discovery of America, ami >
t left-too, where the reason for that right has j
almost if not entirely ceased ? Will the State j
urge, after greatly advancing-in science ami
civilization, and what is still betier, in the
know ledge ofpist and equal laws, that by rea
son of its-crowded population rt is unable to
“subsist and multiply” without this land—that
these “rude tribes have not advanced from
the hunter state and usurp more territorv
than is necessary for their subsistence, or,
are not sufficiently confined within “narrow
limits r
Tliis court does not consider this law to be 1
an act of force, but is fiumlcd, no doubt, in'
what the Legislature honestly believed to be!
a right acquired,somewhere between the first:
discovery of the country and tlie passage of!
the-act, either in the force and effi-ct of the!
j'mvs of Great Britain, over that people from'
wltom we obtained the-country, or in our own 1
laws, treaties and compacts, since its ocquisi
tion. It rs then under this view we narrow!
down the consideration of the question.
And first, if the Indians have a title to ex-!
tinguish, what is that title ? I shall consider!
the question under a two-fold aspect. Ist.
AVbat part or portion of the land have they a I
right to enjoy under their title ?
2d Mhat is the nature and duration of I
their title ?
An idea prevails that the mines and mine- 1
rals of a country are sepaiate and diatinet from
the interest of the land, and that the former
always belong to the sovereign. Now nod;.
. ing is more erroneous, am! this mistake has I
occasioned all the difficulty. I candidly own
that i labored under it myself and granted an
Injunction with a view to settle the question,
but when I came to examine the subject, 1
foiled noUriugtosuppcrtsuch an idea; on tlie
contrary I found every thing which was cal
culated to satisfy me 1 was wrong. Not de
siring my own views, by any means, to be con
sidered as authority, I shall speak whenever
I can in the language of the law, as given to
us by the best and most approved writers. —
Justice Kent, therefore, says, “it is a fun
damental principle in the English law, deriv
ed from the maxims of the feudal tenures,
that the King was the original proprietor of
all the land in the kingdom, and the true and
only source of title {2 Black’s Coin- 51,53,
86, 105.) In this country we have adopted
the same principle, and applied it to our re
publican government; and it. is a settled and
fundamental doctrine with us, that all valid
individual title to land within the United
States, is derived from the grant of our own
local governments, or from that of the United
States, or from the crow a, or royal chartered
governments established here prior to the rev
olution.” 3 Kent's Corn. 37 0, and the au
thorities there cited.
Now what is land? “In its legal significa-
tion, (says Coke arid Black.-tone,) land hath
an indefinite extent upwards as well as down
wards. Upwards, to “the sky” is the maxim
oftlic law, and therefore no man may erect
any building, or the like, to overhang anoth
er’s land; and, downwards, whatever is in a
direct line, between the surface of any land
and the centre of the earth belongs to the
owner of the surface, as is every day’s experi
ence in the mining countries. Ho that the
word “land” includes not only the face of the
earth, but every tiling under it or over it.—
And thereforo, if a man grants all his lands,
lie grants thereby, all his mines of metal and
other fossils, his woods, his waters, and his
houses, as well us iris fields and meadows.”—
2 Black’s. 18.
! By the foregoing doctrine it will appear
that the. State as the “ original proprietor” of
all the lands, held not only ail the mines and
! minerals , but every thing else that is included
jjn tiic term land. Originally they have nev
; or been separated, any mure than the woods
i and waters have been separated from the soil,
am! I defy the production of any authority to
prove the ■contrary. But whenever the Crown
granted its la;#ls, if it choose to make a re
servation of the mines and minerals upon the
face of the grant, it had a right to do so, aud
from that time they became separate and dis
tinct, and never before. And all the mines
and minerals now held by the King of Great
Britain, separate from the lambs, is bv virtue
of such reservation at the time of granting liis
land. This is the ease with regard to some
of the lead mines of the United States, and
this was attempted by an act of Georgia in
1825, but meeting the decided disapproba
tion of the peojds it was shortly repealed, i
have no hesitation in saying that the State,
holds just as good a title to the Indian lands
as it does to their mines and minerals ; that it
j is by virtue of the former it has any right at
j all to the latter; they are inseparable. If
they were distinct rights w hile the land is in
1 possession oftlic Indians they would remain
j so after the Slate acquires the land from the
Afclian-, for there is nothing in that act that
yKwitcs them, and a consequence would be,
; when she-granted out Iter lands to her citizens
the minesrnid minerals would not pass, even
though she made no reservation in *,ie grant,
anil this \ve all know is not the case. •
1 have looked in vain for any historical fact,
in relation to the discovery and settlement of
America, for any reservation of the mines
and minerals to the sovereign, separate and
apart from the territory itself ; indeed there
j could lie no reason for such a distinction, for
as before observed, the whole empire and do
main bclongedlo the discoverer. No Char
ter, Proclamation, law or public document,
contains any mention of such reservation, i
therefore conclude that whatever right the
Indians hold to theirland,they Imi Id the same
right to everything which fails within its le
! gal definition, and this brings us to consider,
| secondly, the nature and duration of their
title.
In considering this head, I shall present
three views of the subject.
Ist. In what maimer their title was respect
ed by Groat Britain, the discovering nation,
and from whom "Georgia obtained the conn
try.
2d. In what manner Georgia has respected
it since its acquisition.
And 3d. llow it has been respected by the
Courts of Justice.
Ist. We have already shown that the dis
covering nation had a right to take by force a
[tart of the country, such as would strictly an
swer the exigency making such force neces
sary, but that nothing would just ify the taking
the whole of the country and leaving its inha
bitants to perish. That though they might be
i confined in “narrow limits,” yet there wi re
some limits to which they would have a right
of force. Whether they are now within those
limits, it is not my intention to enquire, though
it i.s well worthy of humane consideration,
especially as they tire receding from the “hun
ter life,” which originally justified the seizure
of their lands, and approaching the agricultu
ral condition, which brings them within the
“curse” of their creator, and entitles them, in
common with the rest of mankind, to a por
tion of the earth, for their support. But Great
Britain never took one foot of their land by
force. She chose the rather lo adopt a more
enlarged and liberal |*olicv, and waving the
right as admitted by Ynttel, resulting, as he
said, from a “celebrated question to which
the discovery of the new world had principal
ly given rise,” and was therefore anew doc
trine in the law of nations, she reposed her
self upon the law as it stood previous to this
new principle, and took the counlrv subject
to the right of conquc st. This right as every
one knows confers upon the conqueror only
the empire and the unappropriated domain,
hut private property is sacred. It is true the
1 Indians did not hold their lands in private
right, that they enjoyad them in common ;
but Great Britain, greatly to the praise of
her justice and humanity, chose to respect
them in that light, and consequently wc find
in a statement of the Province of Georgia,
in 1740, sent home to the trade office m Lon
don, that net an. “.Englishman was settled
within this district when the first Colony of
Georgia arrived. The country was then all
covered with woods. Mr. Oglethorpe agreed
with the Indians, and itrcii vse of them the
limits mentioned in the treaty.” Except the
charters which granted all Georgia to Ogle
thorpe and his company, this is the first in
strument or compact between the whites and
the Georgia Indians, and what does it imply?
Does it not incontestibly shew some kind of
right in the Indians, if Savannah and the
surrounding country was bougiit, is it riot proof
that the seller had title, and if he had title to
that which was sold did he not retain a title to
that which he did not sell? If before Ogle
thorpe landed, while Georgia “was then all
covered with woods,” and in the exclusive
possession of the Indians, they had mines
which they then used or might have used that
did not fall within the cession made to Ogle
thorpe, does any due believe that he could
by v irtue of this treaty, there being no other
instrument in tiie way, have restrained the
Indians from the use of those mines? 1 think
no one can answer in the affirmative. Then
from that day to this, where is the treaty that
is upon any other footing? If the Indians
had the right, then where have they lost it ?
Oglethorpe, within his ceded territory, and
with his company under his King’s charter,
was as much the government of Georgia, us
Georgia now is under its present constitution,
and if he could not divest the Indians of their
right to dig gold in their lands, not ceded to
him, how can Georgia do it now with no
higher right, indeed with precisely a similar
right ? We have only to carry Georgia’s pre
sent government back to that time and leave
out all the treaties we have had with the In
dians since, and we have precisely the ques
tion above stated. Deriving our right from
Great Britain, we do not pretend to claim i
any better title than she had, unless indeed it,
• is the genius of Republics to be more grasp-!
ing than Monarchies, a principle 1 trust, that 1
will never be admitted. The above reason-!
ing then shows a time when the Indians had
I a riiilvt to the gold found on their land ; if they
! have lost that right, it is certainly incumbent 1
i upon the party who says he lias acquired it
!to shew the deed by which it has passed. 1
■ confess 1 have looked for it in vain.
The next distinct and public evidence of
i respect for the Indian title on the part o' !
| Great Britain is to he found in the King’s!
proclamation of 17(i3—It is as follows:
| “Whereas it is just an i reasonable and os- ]
senti.il to our interest, that the several na
tions or tribes of Indians with whom we are
connected, and who live under our protec
tion, should not he molested or disturbed in
the possession of such parts o our dominions
and territories as, not having been ceded, or
purchased ny us, are reserved to them, or
any of them, as their hunting grounds; we i
do thereforo declare it to he our royal will
and pleasure, that no Governor of aiiy of our
colonies do presume for the present, and un
til our further pleasure he known, to gran'
narrrnt of survey or pass patents for any
lands beyond the heads or sources of any of
the rivers which fall into the Atlantic ( Loan,
or upon any lands whatever, which not hav
ing been ceded to, or purchased by us, as
aforesaid, are reserved to the said Indians or •
any of them.”
The next clause of this proclamation fur
ther defined the reserved laudato the ludi
j ana, and forbid all persons from cither pur
chasing c. settling within tiic same, and fur
ther required all persons who had inadver
tently “seated tin lasehes upon lands which
had not been ceded or purchased, forthwith
to remove themselves from such settlements.”
And then it concludes in the following just
and emphatic language; to the end that, the
Indians may be convinced of our justice and
determined resolution to remove ail reasona
ble cause of discontent, we do, with t lie ad
vice ofour privy council, strictly enjoin and
require, that no private person do presume to
j make any purchase from the said Indians,
[ but that if at any time, any of the said Intii
! ans should be inclined to dispose of the said
j lands, f he samesiiall be purchased ovAvfor vs,
jin our name, at some public meeting or as
\ sembl’T of the said Indians, to be held for that
j purpose by the Governor of our Colony, with
j in which they sliali lie.”
Here then we do most clearly perceive
I that Great Britain forever relinquished tlie
j idea, whether founded in right or not, of tak
; ing Indian lands by force, and that she as
j clearly substituted in its place the right, and
ino other, of PRE-EMPTION. In this proc
j lamat ion the pre-emption right, most, obvious
! !y originated, was the only one claimed by
j by Great Britain while the country remained
j her’s, and was continued, as we shall hereaf
j ter see, by Georgia, down to a very late pe
-1 riod.
In nil the treaties made with the Indians,
on the part of Great Britain, that govern
ment evinced a studious care to make it ap
pear to the world that all its purchases were
lair and just. In the last treaty made in
1773, with the Cherokee and Creek Indi
ans, there is a remarkable instance of this
anxiety. After stating in the preamble, that
the Indians in a full, free and voluntarily
manner desire to cede the fends therein men
tioned, for the purpose of paying their debts
to the traders, and that it will he a grca r . fa
vor rendered them to purchase tho same, the
Indians say, “we do hereby solemnly declare
that we do fully and clearly understand eve
ry part of this treaty and cession, it having
been fully explained iuul interpreted to us,
and that the same is made at our own re
quests and for our own benefit and advantage.”
This treaty was for all that fine country a
bove Little river, up to the Cherokee Coi
ner.
This closes the first view proposed, which
was to shew the manner Great Bitainrespec
ted the Indian title, and creditable as it imiv
and dors appear to that Kingly government,
it is not more so than that of the Republics
of America after tho Indians fell to our
charge. 3 proceed to show how Georgia has
respected their title since her acquisition of
the territory.
She commenced precisely:;?. Great Bri
ain left oil, which \v i ■ to p’li'ckase by treaty,
a scope of country extending from tlie upper
line of the cession last named to the Curre
hee mountain. This treaty WB3 made in!
1783, and by the authorities of Georgia alone!
with the Indians, Tuovears after nnotlic-
Treaty was made by Georgia Commissioners
with the Creeks, in which is found this
clause, “if any citizen of this State or other
person shall attempt to settle or run any of the
lands reserved to the Indians for their hunt
ing grounds, such person or persons may he
detained until the Governor shall demand
him or them,” and then lie was to be punish
ed in the presence of the Indians. In 1787
the Federal Constitution was formed, the
10th Sec. of the Ist Art, of which declared
that "no State, shall enter into any Treaty ,”
and by the 2d. Sec. of the 2d. Art. it is also
declared, that the “/* resident, u-iih the advice
aud consent of the Senate, (tiro thirds concur
ring,) shall male all Treaties Under this
constitution, Georgia believed that she had
ho longer the right to treat with the Indians
for their lands ; she always asserted aud man
tained her right to the jurisdiction and ulti
mate soil of the country, through very many
difficulties which she had with tno General
government, but yielded flic right to that
government to purchase off by treaty, for her
use, the Indian title tosaid lands, always ccn
i ceding that the Indians had a title of which
| they could not be divested but by fair pur
j chase, and that Georgia had the pre-emption
j right to the same. The first public docu
j merit where this rig-lit of purchase is consul
j cred a pre-emption right, is in tiie Conven
tion of Beaufort bctweenCcorgiaand South
j Carolina, in which both parties designate it
iby that name, to wit: “Georgia cedes to
South-Carolma, (the lands between Tugaloo
and Kiowec) all the right, title and claim,
which she hath to the government sovereign
ty and jurisdiction, in and over the same, anil
also the right of pre-emption of the soil from
! the native Indians.”
In numerous acts of the State, whenever
Indians or Indian lands occur, u title of
some sort is always acknowledged in the In
dians, aud that the same must be extinguish
ed by purchase, and that by the U. States,
since the adoption of the Federal Constitu
tion. It is wonderful to observe the mass of
cvidenccsprcad through the public records to
tins effect. For instance, in the act of ’93,
appropriating lands for the payment of the
State troops, it is required that our “Sena
tors and Representatives apply without loss
of time for a treaty to he held with such
tribes who may claim the right of soil to such
lands.” In an art nmondatorv of this act,
common!v called tiie “Yazoo act,” where, if
all se use of justice to Indian rights could
have been forgotten, it would be the very
place to find it; yet even here their tifle was
respected, and the Yazoo purchasers were
bound to extinguish it through the agency of
the General Government by fair purchase;
and what is remarkable, in four places of that
act, the right of Georgia is expressly called a
pre-emption right. But this may be consid
ered as not tin; best, authority, and 1 am so
disposed to consider if. 1 only mention it
to shew that men of ai! descriptions have been
disposed to respect the title of the Indians,
and that surely less ought not to he expec
ted from an honest community. There is
however, an authority that I am sure every
body will regard, and it is the memorable act
which repealed the Yazoo act, commonly call
ed the rescinding act. This act was drawn
tip by tiic late Governor, James Jackson, one
among the ablest statesmen and patriots that
Georgia ever bad. The preamble which is
an able view of Georgia’s rights over the In
dian territory, and which boldly claims the
right of jurisdiction and soil, justly recogni
zes a title in the Indians, the right to extin
guish w hicli is only pre-emptive on the part of
the State. Then in the first enacting clause,
it deel ires that the Yazoo,act and the grants
issued under it arc. null and void, “and the
territory therein mentioned is also hereby
declared to ho flic sole property of the State,
subject only to the right of treaty of the Uni
ted States to enable the. Stale to purchase un
der its pre-emption right, the Indian tide to the
same.”
The fifth section of this act declares the
right to extinguish the Indian title, orto ap
ply to the General Government for that pur
pose, is vested in the people and government
of this State, and concludes in these explicit
terms, “to whom the right of pre-emption to
the same belongs, subject only to the control
ling power of the fa. States, to authorize any
treaty or treaties for, and to superintend tlic
same. ' This act passed in ’96. The next
public document in which wo find the sub
ject mentioned, is in the constitution of the
Stale, adopted in the year ’96. The 23d
section of the Ist art. describes the bounda
ries of the State, asserts the right of soil and
jurisdiction, and concludes bv declaring that
“no sale of territory of this State, or any
[ part thereof,shall take place to individuals
or private companies, unless a county or
counties shall have been first laid off inclu
ding such territory, and (ho Indian rights
shall have been extinguished thereto.’’—
Words can not be plainer ami the obligations
they impose can not he higher; for this
| Court, as well as all officers, arc sworn to
support it. Hut this is not all; keeping up
: and acting entirely in conformity with previ
j ous acknowledgements as contained in trea
ties, acts ami the Constitution, the highest
ciidonccof right, we find in a compact with
the General Government, called the articles
of cession, made in 1802, Georgia stipula
ting * that the United States shall at their
expense, extinguish for the use of Georgia,
as cany as tlie same can he peaceably ob
tained on reasonable terms, the Indian'title”
to the lands left within the State and not sold
to the General Government. What title?
Surely the title wc have been all along tra
cing down from the earliest settlement of the
country, and which we have jus t seen was
called a pre-emption right on tin* part of the
State. I know Georgia has a right to coin
plain that this title liasnot been extinguish
ed; that it could have been dorm long ago
upon reasonable and penuoabm terms/ But
her complaint UiqgairAt the General Govcrn
ment. The Indians are no party in this con
track ihey have not bound themselves by
tin,, instrument. They he answeni".
lrie for the had faith ol one i<l tlq, contracting
parties. Mill it he contended., that if the
Indians will not sell their lands to the Gen
eral Government, we will take them by force?
Would such a doctrine he counicpunacd a
moyg ourselves? If one citizen were to o
blige iyiim elf to purchase e tract of land of
Another citizen, for the benefit of H V
will it he said that this third p er=o ni,t
seize the land if its owner do not choosy
part "with it ? If this is answered in
Urinative, anti it w insisted upon *■' a ,
that a court f justice ought to enforce
an usurped right, then I confess Ij, Jv StK '
mg more to say. But suppose the {W,
Government never had Krtdr-rtaken t,> ,
tinguish tin's right. What then would hli
been our situation with the Indians? 'yiV
must live some where. I presume no
is yet prepared to say their throats should
cut to make way for christianized in . )
Recollect, we would have had jy, ter V
beyond the Mississippi to which v?c cgA,
transport them. Recollect too, tliov • *
capable of being incorporated with m}-,
men. W ill any one maintain, in the faec
the strong cm rent of evidence
through so many inviolable public doctswciit
which I have just adduced in favor of if
light, and which so accurately marks*
orrn, th.t it would be just and right, bt: r
Heaven, to take their property away
consideration, or to pen them up Inse'ch i
its as to perish? 1 cannot believe it i!
much for tire articles of cession. "
confession of Georgia (and confessions • •
considered in courts the very best evident
is to be found in an aide rcpottmadri
-1810, to the Legislature, in the shape of
petition to the President of the United State'
complaining of the treaty of Fort Jack**
and also Calhoun’s treaty which had annullc
the only treaty that was likely to effect air
moral oftlic Indians, viz., the freatvof iS]7
made by Jackson and Meriwether." Jn
memorial is the following distinct acknotv
cdgcmciit—“The State of Georgia claims'
right to the jurisdiction and soil of the ten 'i
tory witliin her limits. She admits however
that the tight ts inchoate, remaining to b
perfected by the United States in the mine
tion of the Indian title; the United State
pro hoc vice, acting as our agents."
This finishes the view in which the hrd;
an title lias been respected by the State ir
Georgia, and brings us to the’ considcratio
of the last thing proposed, how it lias bceii
settled by the Courts of justice, and tiii
branches again into two views.
Ist. As settled by the Supremo Court <1
the U. States and tiie separate States of tin
1 nion— and -2d. as decided by ourovvi
Courts.
And Ist. As to the Supreme Court, Ju
tice Kent, the ablest American comment;
for that has appeared, in collecting the dec is
ions ot that Court and consolidating the if;.-
trine on this subject observes, that “them,
ture ofihe Indian title to lauds lying ithi;
the jurisdiction of a State, though entitled t
be respected by all Courts Until it is legitim
airly extinguished, is not such as to be also
lately repugnant to scison in fee on the par
ol the Government within whose jurisilic’ioii
die lands are situated.”—ttCran. Hop. B*.
Judge Johnson in this same case, went far
ther titan the rest of the Court—he enquire.-
“ii the interest in Georgia was nothing nor,
than a pre-emptive right, how could tint u;
called a fee-simple, which was nothingmir,
than a power to acquire a ieo-sinfok by tm
chase, when the proprietors should be plus
ed to sell ! And if this over was any thi|
more than a mere possibility, it certainly vai
reduced to that state when the State of Gw
gia ceded to the U. States, botli thepotreio
pre-emption and of conquest, retaining for it
self only a resulting right, dependent oil
purchase or conquest to be made by the I
States.”
Justice Kent continues, “In the case,
Johnson vs. Mclntosh, (8 \\ heat. 543,
was stated as an historical fact, that on
discovery of this continent by the nations
Europe, the discovery was considered t<>ln
given to the government by whoso suhjee
or authority it was made, the sole right oj a
qui ring the soil from the natives, (the rig
of pre-emption) as against all other Europe'
powers. Each nation claimed the right l
regulate for itself, in exclusion of nil otha*
the relation which was to subsist betwe
the discoverer and the Indians.” After >■
ting that all the European nations, who b
made discoveries in America, assumedu
ultimate dominion and claimed the right
grant the soil, “subject to the Indian rig
of occupancf,” he adds, “The I • States a;
opted the same principle, and their rxclusit
right to extinguish the Indian title fry I* 1
chase or conquest, and to grant the soil ‘ iD
exercise such a degree of sovereignty *sc.
cumstanex s required, has novel" been p l '-
allv questioned.” lie then affirms wW
have already stated, that the States wit .ll
which any one of the Indian nations *'•
claimed and exercised the right to g°’ c j
them, and that they “could transfer their
lie” lo none hut the power claiming the J
risdictionof their territory. “The P ccl ) *'
habits and character (says our author) ot
Indian nations, rendered them incajah®
sustainingany other relation with the * ll
Ilian that of dependence and P l, i ) . 1 a '?’
There was no other way of dealing ‘
than that of keeping them separate, su'o ‘
note and dependent, with a guardian r
thrown around them for their protection'
After mentioning that the rule cstahlo-• ll
keep the Ju lians subordinate, to govern ®
•protect them, to prevent them from tC ,!
their lands to others, was the best that c 0"
he adopted witli safety , lie states, 'Jj
founded on the pretension of converting
discovery of the country into a conq'itri, •
it is now too late to draw into discussion
validity of that pretension, or tho restrrc'j
which it imposes. It is established L 1
inerous compacts, treaties, laws and °
err, and founded on immemorial usage,
country is colonized and settled, and u f
held by that title. It istlic law olthe
and no court of justice can permit the s
to he disturbed i>y speculative rcaaonUjff
ai,•tract right*” This, ho continues, is
doctrine ol the Supreme Court, and tic
ted States “have never insisted upon an
erchiim to the Indian lands than tin
preemption upon fair terms-” R l!i j
taken by New-York in the case oj ' .
and Jadson, (20 John Rep. C9J,)'\' I( 1 ( j
State claimed the rightof J' rr ' < '"'I , ’ r ''' u ;
Indian lands within Imr limits and 1
other purchases void. The Lege ,
Virginia in 179?) asserted the sanm
ive rinlit ofprc-rmyt.ion. and the eon;