USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 69
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117
It is in vain, and worse than in vain, that the National Legislature enact laws, if those laws are to remain upon the statute book as monuments of the imbecility of the national power. It is in vain that the Executive is called to superintend the execution of the laws, if he have no power to aid in their enforcement.
Such weakness and folly are, in no degree, chargea- ble to the distinguished men through whose instrumen- tality the Constitution was formed. The powers given, it is true, are limited; and no powers, which are not ex- pressly given, can be exercised by the Federal Govern- ment; but, where given, they are supreme. Within the sphere allotted to them, the co-ordinate branches of the General Government revolve, unobstructed by any legitimate exercise of power by the State Governments. The powers exclusively given to the Federal Govern- ment are limitations upon the State authorities, But, with the exception of these limitations, the States are supreme; and their sovereignty can be no more invaded by the action of the General Government, than the ac- tion of the State Governments can arrest, or obstruct, the course of the national power.
In the Ed section of the 3d article of the Constitution, it is decl. red that " the Judicial power shall extend to all cases, in law and equity, arising under the Constitu- tion, the laws of the United States, and treaties made, or which shall be made under their authority."
Having shown that a writ of error will lie in this case, and that the record has been duly certified, the next in- quiry that arises is, what are the acts of the United States which relate to the Cherokee Indians and the acts of Georgia; and were these acts of the United States sactioned by the Federal Constitution?
all affairs [with the Indians, not members of any of the States: Provided, that the legislative right of any State, within its own limits, he not infringed or violated.
As early as June, seventeen hundred and seventy-five, and before the adoption of the Articles of Confedera- tion, Congress took into their consideration the subject of Indian affairs. The Indian country was divided into three departments, and the superintendence of cach was committed to commissioners, who were authorized to liold treaties with the Indians, make disbursements of money, for their use, and to discharge various duties, designed to preserve peace and cultivate a friendly feeling with them towards the colonies. No person was permitted to trade with them without a license from one or more of the commissioners of the respective depart- ments.
In April, seventeen hundred and seventy-six, it was " Resolved, That the Commissioners of Indian Affairs in the middle department, or any one of them, be desired to employ, for reasonable salaries, a minister of the Gospel, to reside among the Delaware Indians, and instruct them in the Christian religion; a school master to teach their youth reading, writing and arithmetic; also, a blacksmith, to do the work of the Indians." The ge- neral intercourse with the Indians continued to be man- aged under the superintendence of the Continental Congress.
On the twenty-eighth of November, 1785, the treaty of Hopewell was formed, which was the first treaty made with the Cherokee Indians. The commissioners of the United States were required to give notice to the Exe- - cutives of Virginia, North Carolina, South Carolina, and Georgia, in order that each might appoint one or more persons to attend the treaty, but they seem to have had no power to act on the occasion.
In this treaty it is stipulated that " the commissioners plenipotentiary of the United States in Congress assem- hled, give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions."
1. The Cherokees to restore all prisoners and pro- perty taken during the war.
2. The United States to restore to the Cherokees all prisoners.
3. The Cherokees acknowledge themselves to be un- der the protection of the United States, and of no other sovereign whatever.
4. The boundary line between the Cherokees and the citizens of the United States was agreed to as desig- nated.
5. If any person, not being an Indian, intrude upon the land "allotted" to the Indians, or, being settled on it, shall refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States, and the Indians were at liberty to punish him as they might think proper.
6. The Indians are bouil to deliver up to the United States any Indian who shall commit robbery, or other capital crime, on a white person living within their pro- tection.
7. If the same offence be committed on an Indian by a citizen of the United States, he is to be punished.
8. It is understood that the punishment of the inno- cent, under the idea of retaliation, is unjust, and shall not be practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded, first, by a demand of justice; and, if refused, then by a declaration of hostilities.
Among the enumerated powers of Congress, contain- ed in the eighth section of the first article of the Con- stitution, it is declared " that Congress shall have pow- er to regulate commerce with foreign nations, and among the Indian tribes." By the Articles of Confede- 12. That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have a right to send a deputy of their choice, whenever they shall think fit, to Congress. ration, which were adopted on the ninth day of July, seventeen hundred and seventy-eight, it was provided " that the United States, in Congress assembled, shall also have the sole and exclusive right and power of re- The treaty of Ilolston was entered into with the same people, on the second day of July, seventeen hundred and ninety-one. gulating the alloy and value of coin struck, by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the This was a treaty of peace, in which the Cherokees United States; regulating the trade and management of | again placed themselves under the protection of the
·
244
CHEROKEE CASE-JUSTICE McLEAN'S OPINION.
[APRIL
United States, and engaged to hold no treaty with any foreign power, individual State, or with individuals of any State. Prisoners were agreed to be delivered up on both sides; a new Indian boundary was fixed; and a cession of land made to the United States on the pay- ment of a stipulated consideration.
A free, unmolested road was agreed to be given through the Indian lands, and the free navigation of the Tennessee river. It was agreed, that the United States should have the exclusive right of regulating their trade, and a solemn guarantee of their land, not ceded, was made. A similar provision was made, as to the punishment of offenders, and as to all persons who might enter the Indian territory, as was contained in the treaty of IIopewell. Also, that reprisal or retalia- tion shall not be committed, until satisfaction shall have been demanded of the aggressor.
On the seventh day of August, seventeen hundred and eighty six, an ordinance for the regulation of Indian affairs was adopted; which repealed the former system.
In seventeen hundred and ninety-four, another treaty was made with the Cherokees, the object of which was to carry into effect the treaty of Holston. And on the plains of Tellico, on the second of October; seventeen hundred and ninety-eight, the Cherokees, in another treaty, agreed to give a right of way, in a certain di- rection, over their lands. Other engagements were also entered into, which need not be referred to.
Various other treaties were made by the United States with the Cherokee Indians, by which, among other arrangements, cessions of territory were procured and boundaries agreed on.
In a treaty made in eighteen hundred and seventeen, a distinct wish is expressed by the Cherokees, to as- sume a more regular form of Government, in which they are encouraged by the United States. By a treaty held at Washington on the twenty-seventh day of Feb- ruary, eighteen hundred and nineteen, a reservation of land is made by the Cherokees for a school fund which was to be surveyed and sold by the United States for that purpose. And it was agreed, that all white per- sons, who had intruded on the Indian lands should be removed.
To give effect to various treaties with this people, the power of the Executive has frequently been exer- cised; and at one time, General Washington expressed a firm determination to resort to military force, to re- move intruders from the Indian territories,
On the thirtieth of March, eighteen hundred and two, Congress passed an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.
In this act, it is provided, that any citizen or resident in the United States, who shall enter into the Indian lands, to hunt, or for any other purpose, without a li- cense, shall be subject to fine and imprisonment. And if any person shall attempt to survey. or actually sur- vey, the Indian lands, he shall be liable to forfeit a sum not exceeding one thousand dollars, and be imprisoned not exceeding twelve months. No person is permitted to reside as a trader within the Indian boundaries, with- out a license or permit. All persons are prohibited, under a heavy penalty, from purchasing the Indian lands; and all such purchases are declared to be void. And it is made lawful for the military force of the Unit- ed States to arrest offenders against the provisions of the act.
By the seventeenth section, it is provided, that the act shall not be so construed as to "prevent any trade or intercourse with Indians living on lands surrounded by settlements of citizens of the United States, and be- ing within the ordinary jurisdiction of any of the indi- vidual States; or the unmolested use of a road, from Washington district to Mero district, or to pre- vent the citizens of Tennessee from keeping in repair said road." Nor was the act to be so construed as to prevent persons from travelling from Knox- | as a citizen thereof. So help me God."
ville to Price's settlement, provided they shall travel in the trace or path which is usually travelled, and the In- dians do not object; but if they object, then all travel on this road to be prohibited, after proclamation by the President, under the penalties provided in the act.
Several acts, having the same objects in view, were passed prior to this one; but as they were repealed either before, or by the act of eighteen hundred and two, their provisions need not be specially noticed.
The acts of the State of Georgia, which the plain- tiff in error complains of, as being repugnant to the constitution, treaties, and laws of the United States,are found in two statutes.
The first act was passed the twelfth of December, eighteen hundred and twenty-nine; and is entitled "An act to add the territory lying within the chartered limits of Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, Dekalb, Gwinnett; and Habersham; and to extend the laws of the State over the same, and to annul all laws made by the Che- rokee nation of Indians, and to provide for the compen- sation of officers serving legal process in said territory; and to regulate the testimony of Indians, and to repeal the ninth section of the act of eighteen hundred and twenty-eight on this subject."
This act annexes the territory of the Indians, within the limits of Georgia, to the counties named in the title; and extends the jurisdiction of the state over it. It annuls the laws, ordinances, orders, and regulations, of any kind, made by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the courts of the State. By this law no Indian, or the descendant of an Indian, residing within the Creek or Cherokee nations of Indians, shall be deemed a com- petent witness in any court of the State, to. which a white person may be a party, except such white person reside within the nation. Offences under the act are to be punished by confinement in the penitentiary, in some cases not less than four or more than six years, and in others, not exceeding four years.
The second act was passed on the twenty-second day of December, eighteen hundred and thirty, and is entitled "An act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of autho- rity from the Cherokee Indians and their laws, and to pre- vent white persons residing within that part of the char- tered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory."
By the first section of this act, it is made a peniten- tiary offence, after the first of February, eighteen hun- dred and thirty-one, for any person or persons, under colour or pretence of authority from the said Cherokee tribe, or as head men, chiefs, or warriors of said tribe, to cause or procure by any means, the assembling of any Council or other pretended Legislative body of the said Indians, for the purpose of legislating, &c.
They are prohibited from making laws, holding courts of justice, or executing process. And all white persons, after the first of March, eighteen hundred and thirty-one, who shall reside within the limits of the Cherokee na- tion, without a license or permit from his Excellency the Governor, or from such agent as his Excellency the Go- vernor shall authorize to grant such permit or license, or who shall not have taken the oath hereinafter requir- ed, shall be guilty of a high misdemeanor; and, upon conviction thereof, shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years." From this punishment, agents of the Uni- ted States are excepted, white females, and male chil- dren under twenty-one years of age.
Persons who have obtained license, are required to take the following oath: "I, A. B., do solemnly swear, that I will support and defend the Constitution and laws of the State of Georgia, and uprightly demean myself
1832.]
CHEROKEE CASE-JUSTICE McLEAN'S OPINION.
245
The Governor is authorized to organize a guard, which shall not consist of more than sixty persons, to protect the mines in the Indian territory, and the guard is authorized to arrest all offenders under the act.
It is apparent that these laws are repugnant to the treaties with the Cherokee Indians which have been referred to, and to the law of eighteen hundred and two. This repugnance is made so clear by an exhibi- tion of the respective acts, that no force of demonstra- tion can make it more palpable. .
By the treaties and laws of the United States, rights are guarantied to the Cherokees, both as it respects their territory and internal polity. By the laws of Georgia these rights are abolished; and not only abolish- ed, but an ignominious punishment is inflicted on the Indians, and others, for the exercise of them. The im- portant question then arises, which shall stand, the laws of the United States, or the laws of Georgia? No rule of construction, or subtilty of argument, can evade an answer to this question. The response must be, so far as the punishment of the plaintiff in error is concerned, in favor of the one or the other.
Not to feel the weight of this momentous subject, would evince an ignorance of that high responsibility which is devolved upon this tribunal, and upon its hum- blest member, in giving a decision in this case.
Are the treaties and law which have been cited, in force? and what, if any, obligations, do they impose on the Federal Government, within the limits of Georgia?
A reference has been made to the policy of the Unit- ed States on the subject of Indian affairs, before the adoption of the constitution, with the view of ascer- taining in what light the Indians have been considered by the first official acts, in relation to them, by the United States. For this object, it might not be impro- per to notice how they were considered by the Europe- an inhabitants, who first formed settlements in this part of the continent of America.
The abstract right of every section of the human race to a reasonable portion of the soil, by which to acquire the means of subsistence, can not be controverted. And it is equally clear, that the range of nations or tribes, who exist in the hunter state, may be restricted within reasonable limits. They shall not be permitted to roam, in the pursuit of game, over an extensiveand rich coun- try, whilst, in other parts, human beings are crowded so closely tegether, as to render the means of subsist- ence precarious. The law of nature, which is para- mount to all other laws, gives the right to every nation, to the enjoyment of a reasonable extent of country, so as to derive the means of subsistence from the soil.
In this view, perhaps, our ancestors, when they first migrated to this country, might have taken possession of a limited extent of the domain, had they been suffi- ciently powerful, without negotiation or purchase from the native Indians. But this course is believed to have been nowhere taken. A more conciliatory mode was preferred, and one which was better calculated to im- press the Indians, who were then powerful, with a sense of the justice of their white neighbors. The occupan- cy of their land was never assumed, except upon the ba- sis of contract, and on the payment of a valuable con- sideration.
This policy has obtained from the carliest white set- tlements in this country, down to the present time. Some cessions of territory may have been made by the Indians, in compliance with the terms on which peace was offered with the whites; but the soil thus taken was taken by the laws of conquest, and always as an indem- nity for the expenses of the war, commenced by the In- dians.
At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always admitted to possess many of the attributes of sovereignty. All the rights which belong to self-go- vernment have been recognized as vested in them. Their right of occupancy bas never been questioned,
but the fee in the soil has been considered in the go- vernment. This may be called the right to the ulti- mate domain, but the Indians have a present right of possession.
In some of the old states, Massachusetts, Connecti- cut, Rhode Island, and others, where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the state have been ex- tended over them, for the protection of their persons and property.
Before the adoption of the Constitution, the mode of treating with the Indians was various. After the form- ation of the Confederacy, this subject was placed under the special superintendance of the United Colonies; though, subsequent to that time, treaties may have been occasionally entered into between a State and the In- dians in its neighbourhood. It is not considered to be at all important to go into a minute inquiry on this sub- ject.
By the constitution, the regulation of commerce among the Indian tribes is given to Congress. This power must be considered as exclusively vested in Congress, as the power to regulate commerce with fo- reign nations, to coin money, to establish post offices, and to declare war. It is enumerated in the same sec- tion, and belongs to the same class of powers.
This investiture of power has heen exercised in the regulation `of commerce with the Indians, sometimes by treaty, and at other times by enactments of Con- gress. In this respect, they have been treated by the Federal authority, with but few exceptions, on the same footing as foreign nations. .
It is said that these treaties are nothing more than compacts, which cannot be considered as obligatory on the United States, from a want of power in the Indians to enter into them.
What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right of self-government.
Is it essential that each party shall possess the same attributes of sovereignty, to give force to the treaty? This will not be pretended; for, on this ground, very few valid treaties could be formed. The only requisite is, that each of the contracting parties shall possess the right of self-government, and the power to perform the stipulations of the treaty.
Under the constitution, no State can enter into any treaty; and it is believed that, since its adoption, no State, under its own authority, has held a treaty with the Indians.
It must be admitted that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign State, so as to claim the right to sue in the Supreme Court of the United States; and yet, having the right of self-govern- ment, they, in some sense, form a State. In the ma- nagement of their internal concerns, they are depend- ent on no power. They punish offences under their own laws, and, in doing so, they are responsible to no carthly tribunal. They make war, and form treaties of peace. The exercise of these, and other powers, gives to them a distinct character as a people, and constitutes them, in some respects, a State, although they may not be admitted to possess the right of soil.
By various treaties the Cherokees have placed them- selves under the protection of the United States; they have agreed to trade with no other people; nor to in- voke the protection of any other sovereignty. But such engagements do not divest them of the right of self-government, nor destroy their capacity to enter into treaties or compacts.
Every state is more or less dependent on those which surround it; but, unless this dependence shall extend so far as to merge the political existence of the protected people into that of their protectors, they may still con- stitute a State. They may exercise the powers not re-
246
CHEROKEE CASE-JUSTICE McLEAN'S OPINION.
[APRIS
linquished, and bind themselves as a distinct and sepa- rate community.
The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend that the word "allotted," in reference to the land guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a rightacknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.
The question may be asked, Is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nations of Europe, with whom we have made treaties?
The inquiry is not, What station shall now be given to the Indian tribes in our country? but, What relation have they sustained to us, since the commencement of our Government?
We have made treaties with them; andare those trea- ties to be disregarded on our part, because they were entered into with an uncivilized people? Does this lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to bind themselves, and to impose obligations on us?
The President and Senate, except under the treaty- making power, cannot enter into compacts with the In- dians, or with foreign nations. This power has been uniformly exercised in forming treaties with the In- dians.
Nations differ from each other in condition, and that of the same nation may change by the revolutions of time, but the principles of justice are the same. They rest upon a base which will remain beyond the endurance of time. A
After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the General Government, it is too late to deny their binding force. Have the numerous treaties which have been formed with them, and the ratifications by the President · and Senate, been nothing more than an idle pageantry?
By numerous treaties with the Indian tribes, we have acquired accessions of territory, of incalculable value to the Union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognized in them the right to make war. No one has- ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have inflict- ed the punishment on them has a nation, and not on in- dividual offenders among them as traitors.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.