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MAY 18, 1830.)
Removal of the Indians.
(H. OF R.
than by its full belief that the right so to exercise it be- | bunal has decided that the power given to Congress, longed to that tribe?
under this clause of the constitution, is exclusive, and If the power of legislation exists, how are these Indians amounts to a prohibition to the States to exercise it. to be regarded as citizens, aliens, or denizens Not as I shall not stop to comment upon the suggestion, tbat it citizens, it would seem, for the law already passed nearly is not said Congress shall have power to regulate commerce outlaws them. It does not indeed declare them incompe- with the Indian tribes within the States ; for the exprestent to sue as plaintiffs in their courts ; but it has all the siop is general: it is made to extend to all Iudian tribes, practical consequences of outlawry; for they are deprived and must include those within as well as those without the of the benefit of the only testimony which would generally territorial limits of a State. But there were no Indians in exist, to sustaiu their legal rigbts. Not only no Indian Ibe United States who were not, at the time of the adop. cap testify for another, where a white man not residing in tion of the constitution, within thn territorial limits of some the nation is the adverse party ; but no descendant of one, State. Such bas uniformly been the construction of this however remote, is a competent witness. The rights of clause of the constitution, and it has received the sanction personal security, personal liberty, and private property, of the Supreme Court. so far as it regards the Indians, are by this law practically. This power
, in my opinion, forbids all control over the annihilated; it is clear they are not aliens, residing within Indian tribes within the limits of Georgia, through the the jurisdiction of the States; for if so, whose subjects medium of her laws. It was, I think, so intended, and are they? They are not denizens ; for a State cannot must of necessity be so. make them such. They bave pot been made citizens by By the articles of confederation, it is provided that the naturalization; for a State cannot make them such, in that United States io Congress assembled shall have the sole manner. If, then, they are subject to the municipal regu- and exclusive right of regulating the trade and managing lations of the State, it is because they are, and from the all affairs with the Indians not members of any of the period of the declaration of independence have been citiz- States, provided that the legislative right of any State ens of the State. If citizens, they may be prosecuted for within its owo limits be not infringed or violated :" and all offences for which the wbites may be prosecuted in the ordinance of 1786, this legislative right was expressbigamy, treason, &c. &c. If citizens, they are to be enum. ly adverted to and recognised. When the constitution was erated in the census, and to form a part of the basis of framed, this proviso was purposely omitted. It does not representation if taxed. Now, did the framers of the con appear in that instrument; and it is to be recollected that stitution ever suppose that, by exercising the power of some of the distinguished men who signed the articles of taxation, the whole of the Indian tribes within the limits confederation, also affixed their signatures to the constiof the States could be represented on the floor of Con- tution, and were members of that Congress which enacted gress? Would Georgia bave a right to send one of the the first intercourse law after its adoption, July 22d, chiefs or headmen of these tribes as a Representative or 1790 ; continued by acts of March 1st, 1793; May 19th, Senator to the National Legislature? The old Congress 1796; March 3d, 1799, and made perpetual by act of did pot think so, when it was provided in the treaty of March 30th, 1802. In the fiftb section of the act of 1790, Hopewell that the Indians should bave the right to send a provisiou is made, which evinces most clearly tbat the a deputy of their choice, whenever they should think fit, to Indians were not considered as within the jurisdiction of Congress: they never were, at any time, considered sub- any State, for it provides for the pupisbment of citizens or jects of Georgia ; but if they are now, they always have inhabitants of the United States who commit crimes in been, since July 4, 1776; and a new basis of representa- tbe Indian territories, in the same manner as if the offence tion is to be made after the year 1831, for the States had been committed withiu the jurisdiction of the State within whose limits Indian tribes reside. The law of Mis- of wbich they were inhabitants or citizens. The same sissippi, if a valid one, bas completely effected this object; provision is to be found in the fourth section of the act of for while it abolishes the laws and usages of the Indians, March, 1793. And in the first act, sales to States are deit confers on them the rights of citizens, and subjects clared void, though they bave the pre-emptive rigbt, unthem to the operation of all the laws, statutes, and ordi- less at a public treaty held under the authority of the nances of the State ; and the twenty.third Congress will United States. perhaps have one additional representative from Mississip It would seem, from these facts, no other inference pi, by force of this legislative enactment.
could be drawn than that the framers of the constitution The power to extend the municipal regulations of the supposed they had effectually excluded State legislation State of Georgia over the Iudians, if it ever existed, is over the Indian tribes; else, why omit in the constitution taken away by the constitution, and cannot now, consist- what was inserted in the articles of confederation less than ently with the provisions of that instrument, be exercised. ten years preceding, and which must bave beeo known,
I suppose it will be admitted that the State, by adopt- understood, and well considered by the convention in 1787, ing the constitution, is bound in good faith by its provi- the reservation of the legislation of the States ? And why, sione, and cannot claim to exercise any rights which by in the first law which was made, in executiou of the power that instrument are conferred exclusively on the General given to Congress, was it necessary to provide for the puGovernment, or prohibited to the State. A denial of Dishment of crimes committed on lands belonging to the this principle would, of course, be a denial of any para Indians, declared to be out of the jurisdiction of the States, mount authority of the constitution, and reduce the Go. if they possessed jurisdiction ! Contemporanea expositio is vernment to what it was under the articles of confedera. generally a safe rule, both in the construction of constitution,
tional and statute law, and, if it be applied bere, estaBy the constitution, Congress have power " to regulate blishes the principle that the States had no power of commerce with foreign nations, and among the several legislation over the lodian tribes within their limits. States, and with the Indian tribes." Whatever the ex But let it be examined in another point of view. The tent of this power may be, so far as it exists and may be proviso before referred to, in the articles of confederation, lawfully exercised, it is exclusive. It must necessarily be may bave been inserted ex abundanti cautela, to prevent 80; for if it exist both in the States and in the Federal any inference that the rights of the State to legislate on Government, it becomes nugatory in the hands of either. other subjects than the intercourse with and the affairs of The regulations of the State and of Cougress might con- the Indians were abridged or taken away; for it would have flict with each other; and wbich is to yield ? Neither, if been absurd to have granted to Congress the sole and ex: the power may be exercised by both. This point has, clusive power of regulating the trade and managing all however, been settled by the Supreme Court. That tri- l affairs with the Indiaus pot members of a State, and then
H. OF R.)
(May 18, 1830. to have added a proviso which would have effectually section 6: “ If any citizen or other person shall ço into prevented them from the exercise of the power. In this any town, settlement, &c., belonging to any nation or view, the treaty of Holston of 1785 is binding under the tribe of Indians, and shall there commit murder, by, killclause of the constitution which provides that all debts, ing any Indian, &c.
, he shall suffer death." Would the coutracts, and engagements, entered into before the warrant of execution, issued under the law of Georgia, adoption of tbis constitution, shall be as valid against the be a justification ? Would this be an "available plea in United States under this constitution, as under the con- bar po It seems to me very clear that a State law operatfederation.” But the power to regulate commerce with ing upon the Indian tribes is a mere brutum fulmen. It the lodian tribes not only was iutended and believed to cannot be enforced without entering upon their territory, bave excluded State jurisdiction over them, but such is and that is probibited. the necessary consequence of the grant of the power. Is this intercourse law one made in pursuance of the It has been before slated to be exclusive, and of conse constitution! If it is; it is the supreme law of the labd. quence it denies to the States the exercise of jurisdiction Let me then inquire, what is the meaning of the expresin the regulation of commerce with the tribes. But a sion, “commerce with the Indian tribes ?" The Supreme want of power to regulate commerce or intercourse with Court have given an explanation of this phrase. They say, them, is a want of power to affect them, in any manner, scommerce undoubtedly is traffic, but it is something by legislative eactment. The very circumstance that more; it is intercourse." As used in the constitution, it intercourse may, and must be bad with them in some is a unit
, every part of which is indicated by the term : form, is conclusive that they are considered and to be it cannot stop at the external boundary line of each State, treated as a community distinct from our own citizens. but may be introduced into the interior. In the regulaNow, how can a Siate legislate over a body of men with tion of trade with the Indian tribes, the action of the law, whom they are prohibited from baving any intercourse, especially when the constitution was made, was el i-fly except under regulatious prescribed by Congress? There within a State The power of Congress, then, whatever is no subject, ibere is neither territory nor person, op it may be, must be exercised within the territorial juris which legislation can act. If Georgia can of right pass diction of the several States” What is this power i * It a law which operates upon the tribes, she can enforce it ; is the power to regulate, that is, to prescribe the rule by for it is idle to talk of the right to extend its laws to them, which commerce is to be governed. It is complete in it. if there is no constitutional power to carry them into ef. self
, may be exercised to its utmost extent, and acknow. fect. A right to make and to enforce a law must coexist ledges no limitations other than are prescribed in the eunin the same body: they cannot be separated. Can a law stitution. It is vested in Congress as absolutely as it be executed in a territory where an entry on it cannot be would be in a single Goverument, having in its constitumade, without the assent of a power distinct from that tion the same restrictions on the exercise of the power, as which enacts the law? Let this question be answered by are found in the constitution of the United States. As it a reference to the law of Georgia, approved by the Go- implies, in its nature, full power over the thing to be revernor, December 19, 1829.
gulated, it excludes, necessarily, the action of all others The sixth section extends the civil and criminal laws of that would perform the same operation up the same chat State over the Cherokees, and subjects them to the thing.". The power, then, given to Congress, is to prelegal process of their courts. The seventh section abo- scribe the rule by which intercourse with the Indian tribes ii-hes all their laws, ordinances, orders, and regulations. shall be governed, and excludes the action of all others, Suppose the Cherokees refuse a compliance with these Now, can a State legislate over a territory or a people, ata ute provisions ; how is the State to entorce them! If were both these subjects of legislation are within the process is issued, can the ministerial officer go into their exclusive control of Congress, so far as the constitution territory to serve it! What says the intercourse law of and treaties have given this control : What kind of legisMarch, 1802, section 3?" If any citizen of a State or Ter- lation is that wbieh is made to operate upon a community ritory, or other person, shall go into any country which is with whom the law makers are not even permitted to have allotied or secured by treaty to any of the Iudian tribes any intercourse? It seems as though it were impossible suc south of the river Ohio, without a passport," obtained in cessfully to contend that the tribes of Indians could be the manner specified in the act, "be sball forfeit a sum brought upder State laws, when they are without the reach pot exceeding fifty dollars, or be in prisoned at exceed- even of ordinary commerce with the States. ing three months." Would the process of the State of But another view may be taken of this part of the subGeorgia, alove, be a protection to an officer who should ject. The right to regulate the intercourse with the Ingo among the Cherokees to execute at? Would it save him dian tribes includes a riglit to prohibit it altogether, or to from the penalties of this section of the intercourse law? place it under certain modifications, as the intercourse Would it be " a good plea in bar" to an action of debt to law of 1802 does. Now, Congress bave exercised the recover the penalty, or to an indictment for the offence? power to prohibit commerce or intercourse with foreign Suppose the laws of Georgia to authorize the assessment nations ; they did this when the embargo and non-interof a tax upon the Cherokees, could the tax-gatherer go course laws were passed, and we have at present a noninto their nation and take their property to entisfy it? intercourse law as it regards some of the West India Look at the fourth section of the act of 1802. ^ Jf any citi- islands. These laws have been adjudged valid by the zen, unauthorized by law, and with a hostile intention, highest judicial tribunal of the country. Now, if, under sball be found on any Indian land, such offender shall” be the clause which gives to Congress the right to regulate subject to a pecuniary forfeiture and imprisonment, and, commerce with foreign nations, all intercourse may be “ where property is taken, shall pay for it twice its just prohibited, surely the same thing may be doue, as it revalue." Would the law of Georgia save him from these lates to the commerce with the Indian tribes. And a penalties and forfeitures! Would it be an available de power to prohibit all intercourse is, ex vi termini, a power fence, in suits brought to recover and enforce them which excludes State legislation ; for a State law cannot The twelfth section of the law of Georgia makes it mur- be executed, where there is no lawful right to enter into der to take the life of an Indian residing within the char- the Indian territory to enforce it. tered limits of Georgia, for enlisting as an emigrant, &c., But let us examine this clause a little further. It is very contrary to the laws and customs of the Cherokee nation. obvious that the framers of the constitution supposed that Should there be a violation of this section, and its pepalty the Indian tribes were a cummucity distinct from the orbe exacted, which is death by hanging, what would be dinary citizens of a State. They provided for the regothe consequence Turn again to the intercourse act, lation of commerce, with foreigo nations, between the
MAY 18, 4830.]
Removal of the Indians.
(H. OF R.
States, and with the Indian tribes, that is, with a people pleasure any citizen of the United States who settles on not foreigners, not members of the Union, but distinct their lands: all persons are prohibited from going on to from them, called tribes. They did not profess to regu- their lands without a passport; they shall deliver up offendlate intercourse between citizens of the same State. If
, ers guilty of certain specified crimes against the citizens however, the States by virtue of their sovereignty, can le of the United States, to be punished according to the gislate over the Indians, it is because they are members of laws of the latter; and offenders against them shall be their community, citizens, persons living within their juris- punished as though the crimes had been committed within diction ; and thus the power given to Congress to regulate ihe territory and jurisdiction of the United States. And trade with them is annihilated. They are no louger tribes; by the fifth article of the treaty of Hopewell, which, in they lose that distinctive character and appellation, when 1790, General Washington declared was in full force, and they are claimed to be members of the State ; and thus the provisions of which he felt bund to carry into faithful this clause in the constitution is a dead letter, it means execution, the Indians are admitted to have the power to nothing.
punish, at their discretion, and in such manner as they One observation further on this part of the subject. please, th-se settlers upon their lands, who will not re-. The consent given by the States, in the constitution, that move within six months after the ratification of the treaty. Congress shall have the exclusive power of regulating the In the face of these treaty provisions and recognitions, trade with the Indiana, is a virtual admission that they are can the States legislate over them? Can they exercise an not citizens or iohabitants of the States. They are not authority over thein, even for protection, when that only called trihes, but are treated as distinct communities, power is confided to the United Stales? And what does not incorporated with the States; not a part of their po- protection imply? Merely security in the enjoyment of pulation. Can the United States regulate trade and in their lands! This term is general, and applies to all their tercourse with the citizens of a county or town in any then existing usages and customs. It is to be a protection State! Can they make laws to govern a portion of the against all wbo attempt to intermeddle with them; they inhabitants of a State? They certainly can do it, if the bave abjured the protection of all sovereigoties but the Indian tribes are citizens of the States witbin whose limits United States ; to them is confided the right to regulate the they reside. It cannot, however, be seriously contended trade with them ; to them, offenders are to be given up: that the constitution bas vested in Congress any such by them, offevders are to be punished. And the United power as that which would of pecessity result if the Indi. States bind themselves to observe all these stipulations. ans are cit zens of the States.
How is it possible that a State cap enact a law which shall By the constitution, "power" is given to the President, operate, in a territory guarantied exclusively to the In" by and with the advice and consent of the Senate, to diats, and over a community whose relations are declared znake treaties." This power is also exclusive, and, when to exist only with the United States, and whose local jurisever lawfully exercised, supersedes all State legislation diction is admitted by these provisions to be exclusive of incousistent with it ; for by the same constitution it is the Federal Government ? And now, in what light are provided that all treaties made, or which shall be made, these treaties to be considered with reference to the charunder the authority of the United States, shall be the su- acter of one of the contracting parties? Do they, or do preme law of the land; and the judges in every State shall they dot, imply and admit the Indian tribes to be indebe bound thereby, any thing in the constitution or laws of pendent of, and not subject to, the control of the States ? any Siate to the coutrary, notwithstanding."
and do they possess any binding force ? In pursuance of the power thus given, what at least are Let us attend to the language of General Washington called treaties, have been made with the Southern Indians, on this subject. On the 22d of August, 1789, he came I sball endeavor to show that these treaties, or by what- into the Senate chamber, and asked the advice of the ever name they may be called, contain provisions which Sepate, among other things, on these two points : " Sball exclude all legislation over them by the States within a solemn guaranty” be given “ by the United States to whose chartered limits they are located ; and that these the Creeks of their remaining territory, and to maintain treaties are “ the supreme law of the land."
the same, if necessary, by a line of military posts ?” “ If The treaties with the Cherokees are those to which I all offers should fail to induce the Creeks to make the shall refer, for it is from them we have had memorials so- desired cession to Georgia, sball the commissioners make liciting protection from the legislation of Georgia, and those it an ultimatum ?" To the first question, the Senate anmade with other tribes contain similar provisions. swered in the affirmative; to the second, in the negative.
That these treaties, in terms, and in the fullest and most On the 17th of September, 1789, General Washington golemn munner, guaranty to them forever all their lands sent a message to the Senate, in which he states that it not eeded, is admitted. Any legislation, either of the Unit is important that all treaties and compacts formed by the ed States or the States, which would deprive them of their United States with other nations, whether civilized or not; possessions, would, of course, be an jufraction of these com-should be made with caution and executed with fidelity." pacts. No such legislation, (if the treaties are valid,) wbich After speaking of the practice of the United States with Avould produce this effect, directly, or indirectly, can be ad- European nations, not to consider any treaty as conclusive mitted. These propositions need no illustration or argu- until ratified, and suggesting that the same course would ment to support them.
be advisable in relation to treaties made with the Indians, But not only is this species of legislation probibited, but he asks of the Senate their opinion and advice, whether legislation in every form, and for any purpose, by the States, certain Indian treaties were to be considered as perfected is equally prohibited.
and' ratified, and consequently as obligatory without being The treaty of Holston, July 2, 1791, was the first one ratified; and if not, whether these treaties ought to be made with the Cherokees, after the adoption of the consti- ratified. The Senate answer by adopting the following re tution ; and the subsequent treaties are considered and de- solution : Resolved. That the Senate do advise and cou. clared to be additional to, and forming a part of, this treaty. sent that the President of the United States ratify the Let me now ask the attention of the committee to several treaty." Can any language be more expressive of the clauses in this treaty.
opinion of the President and of the Sepute that these The Cherokees are placed under the protection of the treaties were of the character contemplated by the conUnited States, and of no other sovereign whatever; they stitution requiring ratification, as made with a pation stipulate not to hold any trenty with any individual State. having the power to enter into them, and therefore as The United States are vested with the sole and exclusive independent, having the power of self-government? And right of regulating their trade ; they may punish at their it is to be observed that the practice, in regard to these
H. OF R.]
Removal of the Indians.
[May 18, 1830.
Indian treaties, has been wiformly the same from that cited promises with good fuith, the Cherokees make a time to the present.
cession of part of their lands to the United States. It is * On the 11th August, 1790, General Washington sent a very obvious that the only object of this treaty, and the message to the Senate, in which he asks the advice of the cession made under it, was to enable the Cherokees who Senate, whether “overtures shall be made to the Chero. remained east of the Mississippi to institute a Government kees to arrange a new boundary, 80 as to embrace the set. and enact lavs suited to their then condition. This tlements made by the white people since the treaty of object was well understood by the compuissioners who Hopewell;" and whether the United States should " stipu- negotiated, and by the President and Senate who ratified, late solemnly to guaranty the new boundary which may this treaty. As an inducement to effect this object, to be arranged." The Senate gave their advice, by answer them so desirable, they made large grants of their territoing both these questious in the affirmative. It is to be ry. They proceeded to establish their government and observed, also, that, in this message, General Washington laws, to engage in the pursuits of agriculture and civil. explicitly states that he shall consider bimself bound to ized life," upon the faith of this treaty; and eleven years exert the powers entrusted to him by the constitution, in afterwards, they are informed by the President, who neorder to carry into faithful execution the treaty of Hope- gotiated the treaty, and speaking in behalf of the Goverowell.
ment which rntified it, that they cannot be protected in Let me now turn the attention of the committee to the the enjoyment of that Government and those laws, but opinions entertained by the distinguished men who nego- that the State of Georgia may lawfully abrogate both. tiated the treaty of Ghent, speaking in the name of the Was this the view taken of their rights by the commisGovernment, and whose attention was particulary called sioners, nod by the President and Senate in 18174 Was to the subject by the British negotiators; and let it be it not conceded by them all, that the Cherokees bad the remembered that some of them, at least, were advocates right to institute a form of Government and make laws of the rights of the States, and of wbat has been called, for themselves, and that they should not be molested, but in modern times, a strict construction of the powers of protected in the exercise of ibat right! the General Government. These opinions unequivocally In July, 1787. Congress passed an ordinance for the support the Indian tribes in their right to be governed by government of the territory northwest of the river Obio, their own laws and usages. In their note to the British the fourth article of which provides that the “ the utmost commissioners, dated September 9th, 1814, they use the good faith shall always be observed towards the Indians ; following language: "A celebrated writer on the laws of their lands and property shall never be taken from them pations, to whose authority British jurists have taken par- without their consent; and in their property, rights, and ticular satisfaction in appealing, after stating in the most liberty, they never shall be invaded or disturbed, ouless explicit mapper the legitimacy of colonial settlements in in just and lawful wars authorized by Congress; but laws America, to the exclusion of all rights of uncivilized lo- founded in justice and humanity shall, from time to time dians, has taken occasion to praise the first settlers of be made, for preventing wrongs being done to them, and New England, and the founder of Pennsylvania, in having for preserving pence and friendship with them." purchased of the ludians the lands they resolved to culti Io the cession by Georgia, in 1802, it is provided that vate, potwithstanding their being furnished with a charter when the territory ceded by her shall be formed into a from their sovereign. It is this example which the United State, it shall be admitted as such into the Union, on the States, since they became, by their independence, the so-conditions and with the restrictions contained in the fore vereigns of the territory, have adopted and organized into going ordinance, except the article which forbids slavery. a political system. Under that system, the Indians re lu 1817, Congress authorized the inhabitants of the siding within the United States are so far independent. western part of the Territory of Mississippi to form a that they live under their own customs, and not under the State Government, preparatory to ber adıission into the la ws of the United States ; that their rights to the lands Union, with a proviso that the constitution and Goverowhere they inherit or hunt, are seeured to them by bound- meut by them formed should not be repugnant to the aries detined in amicable treaties between the United before mentioned ordinance, and the provisions of the States and themselves; and that whenever these bounda- deed of cersion by Georgia. ries are varied, it is also by amicable and voluntary Jp the same year, Mississippi, having formed a constitotreaties. They are so far dependent as vot to have the tion and State Goveroment, declared by Congress to be right to dispose of their lands to any private persons, nor in conformity to the principles of the foregoing ordinance, to any Power other than the United States, and to he was admitted into the Union. under their protection alonr, and not uuder that of any In 1819, Alabama was admitted on the same principles. other Power. Whether called subjects, or by wbatever Froin these acts two very obvious inferences are to be name designated, such is the relation betweeu them and drawn. The ope is, that, in 1802, Georgia considered the the United States. These principles have been uniformly ordinance of 1787, which secured the property, the recognised by the Indians themselves in all the treaties rights, and the liberty of the Indians, as not only just and between them and the United States."
proper, but as one wbich the continental Congress migbt I now invite the attention of the committee to the lawfully make. The other is, that the States of Alabama Cherokee treaty of July 8th, 1817, which was negotiated and Mississippi are precluded by the acts authorizing them by the present Chief Magistrate of this nation, as one of to form a Government, and admitting them into the Union, the Commissioners. And it is worthy of particular notice, to enact laws which shall infringe upon the rights of the that it was under the faith of this treaty, and one of the Indians. objects for which it was made, to enable the Cherokees to In the Senate of the United States, in 1826, in the disestablish a Government of their own, and adopt laws more cussion of a bill making an appropriation for the repair jo unison with republican principles than their former of a post road in the State of Mississippi, io answer to at usages, and wbich laws and Goveroment the State of objection that the State ought to construct and repair its Georgia claims a right to abolish.
own roads, Mr. King, of Alabama, said, "the road runs The preamble recites that the upper Cherokee towns through the Indian country, over wbich the State of Misare desirous of contracting their society within narrow sissippi had no control.” limits, that they may begin the establishment of fixed Mr. JOHNSON, of Kentucky, said, this "was a road laws and a regular Government ; and for this purpose re opened by the United States, according to a treaty stipuquest a divisional line to be established between them and lation wiih the United States." the lower towns; and to carry into effect the before re. Mr. Ellis, of Mississippi, said, “ the road did not pase
through one-seventh part of that State, and it was impos-1 By the Executive. This is a necessity, implied in sible for the State Government of Mississippi to bave aby making and ratifying them; for it is not to be presumed authority over those lands, till the title to them was extio- that the President would make, and that the Senate would guishedl."
advise and consent to a treaty, which they did not believe Mr. Eaton, of Tennessee, the present Secretary of War, was binding on either of the parties to it. But we are not said, a treaty had been entered into between the United left to mere deductions or inferences from the exercise of States and the Choctaw Indians. The question of State the treaty-making power. The records of our Governrights had not then arisen, and the Government of this ment furnish us with ample evidence of the opinions encountry was in the hands of Mr. Jefferson. Under such tertained of their validity by the illustrious men who have an administration no attempt would have been made to successively held the high office of President of the Unitenter into a treaty with a distinct sovereigoty, that went to ed States. invade the principles of the constitution. * Ever since General Washington, in a communication to the Senate this Government had existed,” Mr. Eaton said, “they in 1790, says:
The treaties which have been entered had proceeded on the principle that the Indians are a dis- into with the other tribes in that quarter, must be faithtinct sovereignty; it was an anomaly that one sovereignty fully performed on our parts: I shall conceive myself should exist within the orbit of another ; but they always bound to exert the powers entrusted to me by the constihad proceeded on this principle, and if they had any right tution, in order to carry into faithful execution the treaty to interfere with them, why did they proceed with them of Hopewell." " The letters to the chiefs of the Creeks in the character of sovereignties ?" Mr. Eaton contended are also laid before you, to evince that the requisite steps that “ by the provisions of this treaty, there was no ces- have been taken to produce a full compliance with the siou of property on the part of these Indians : there was treaty made with that nation on the 7th of August, 1790. not even a cession of sovereignty. They, in their sove- The Senate advised and consented that the President reign capacity as Indians, *yielded their consent to the should cause the treaty coạcluded at Hopewell to be United States to open a road. The United States could carried into execution according to the terms thereof.” “ It dot give the State of Mississippi any sovereignty over it.” is of some importance that the chiefs should be well satis
Mr. BERRIEN, of Georgia, now Attorney-General of the fied of the entire good faith and liberality of the United United States, said, the moderate reflection he had States." been able to bestow on this subject had reconciled bis Similar opinions were expressed by all the persons holdmind to the admission of the principle that the effect of ing the office of President. I will detain the committee, this treaty was certainly of limited extent. This treaty by referring to those of Mr. Jefferson only. was concluded before the admission of the State of Mis The Government is determined to exert all its energy sissippi into the Union, and tho parties to that treaty, for the patronage and protection of the rights of the being considered as distinct sovereigoties, might have im- Indians. Until they cede their lands by treaty, or other posed on the United States certain obligations; from which transaction equivalent to a treaty, no act of a State can obligations they could not disengage themselves by any give a right to such lands." new compacts entered into with the people of Mississippi The validity of these treaties has been fully recognised on their admission into the Union."
by the legislative department of the Government. It has Mr. White, at present a Senetar from Tennessee, and passed, from time to time, laws regulating the intercourse chairman of the Committee on Indian Affairs, io a written with them; laws making appropriations of large sums of opinion given in 1824, says: “These people (the Chero- money to carry these treaties into effect: and the bill now kees) are now to be viewed as a nation possessing all the under consideration proceeds upon the admitted prinpowers of other independent nations, which are not ex- ciple that the Indian tribes have, by treaties, rights to pressly, or by necessary implication, surrendered up by lands which are to extinguisbed, improvements which this treaty, (the treaty of Holston.) I have believed, and are to be purchased and paid for ; and appropriates money still do, that, under the treaties, the Cherokees must be for these objects. considered a nation, possessing like powers with other na The judicial department, in the cases above referred tions, except Ao far as they have surrendered their inde- to, has made a full recognition of the validity of these pendence to the United States."
treaties. It speaks of them as subsisting; as containing Are these treaties, thus explained, binding? If they provisions binding on the parties to them, and which, like recognise and declare the Indian tribes with whom they all other similar compacts within dependent Powers, are are made, so far independent as to possess the right of to be faithfully observed. gorerning themselves by their own municipal regulations, I have, for another purpose, adverted to the opinions as not to be subject to the legislation of the States, and to advanced by distinguished Senators and Representatives have the sole right of occupancy forever to the lands in Congress from the States within whose chartered limdescribed in the boundaries specified, are the treaties the its the Indiaus reside; all sustaining the doctrine that supreme law of the land! Had the Government of the these treaties are the supreme law of the land. I solicit United States the power to enter into and to ratify them the committee to examine them, in connexion with the
It would seem to be somewhat novel that a necessity is topic of argument which I am now discussing: supposed to exist to prove that the treaties made with the These treaties are and must be presumed to be valid, at Indian tribes are valid: but this necessity is imposed, from least until declared to be void by the judicial department. the repeated declarations, made hypothetically indeed, up. It is not competent for Congress to declare them void. on the supposition that they conflict with the supposed and This power is not confided to this body, nor can they treat asserted rights of State sovereignty, that they were not them otherwise than as binding, until that department of lawfully entered into; that no power is given by the con- the Government to which alone is confided the authority stitution to make these treaties; and, therefore, that they to judge of their validity, shall pronounce them not to be are void. Let me ask the attention of the committee to the supreme law of the land. the proofs that they are compacts, which, if not fulfilled by As these treaties were made under the authority of the us, will subject us to the imputation of violating our na- United States, they are, of course, valid. The committee tional faith; that they were, what they profess to be, will notice the marked distinction which is made in the made with full authority, and are now the supreme law. constitution between treaties and laws. Treaties made,
These treaties have received the sanction of every de- or which shall be made, under the authority of the United partment of the Government, and by each been considered States, and laws which shall be made in pursuance of the as binding on the contracting parties.
constitution, shall be the supreme law of the land. To