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 70
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
In the executive, Legislative, and Judicial branches of our Government, we have admitted by the most so- lemn actions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a State, or separate community- not a foreign, but a domestic community-not as be- longing to the Confederacy, but as existing within it, and, of necessity, bearing to it a peculiar relation.
But, can the treaties which have been referred to, and the law of eighteen hundred and two, be consider- ed in force within the limits of the State of Georgia?
In the act of cession, made by Georgia to the United States, in eighteen hundred and two, of all lands claim- ed by her west of the line designated, one of the con- ditions was, "that the United States should, at their own expense, extinguish, for the use of Georgia, as early as the same can be peaceably obtained on reasonable terms, the Indian title to lands within the State of Georgia."
One of the counsel, in the argument, endeavoured to show, that no part of the country now inhabited by the Cherokee Indians, is within what is called the chartered limits of Georgia.
It appears that the Charter of Georgia was surrender. ed by the trustees, and that, like the State of South Carolina, she became a regal colony. The effect of this change was, to authorize the crown to alter the boun- daries, in the exercise of its discretion. Certain altera- tions, it seems, were subsequently made; but I do not conceive it can be of any importance to enter into a mi- nute consideration of them. Under its charter, it may be observed that Georgia derived a right to the soil, subject to the Indian title, by occupancy. By the act of cession, Georgia designated a certain line as the limit of that cession, and this line, unless subsequently altered, with the assent of the parties interested, must be considered as the boundary of the State of Georgia. This line having been thus recognized, cannot be con- tested on any question which may incidentally arise for judicial decision.
It is important on this part of the case, to ascertain in what light Georgia has considered the Indian title to lands, generally, and particularly within her own boun- daries; and also, as to the right of the Indians to self- government.
In the first place, she was a party to all the treaties entered into between the United States and the Indians, since the adoption of the constitution; and prior to that period, she was represented in making them, and was bound by the provisions, although it is alleged that she remonstrated against the treaty of Hopewell. In the passage of the intercourse law of eighteen hundred and two, as one of the constituent parts of the Union, she was also a party.
The stipulation made in her act of cession, that the United States should extinguish the Indian title to lands within the state, was a distinct recognition of the right in the Federal Government, to make the extin- guishment; and also, that until it should be made, the right of occupancy would remain in the Indians.
In a law of the State of Georgia, "for opening the land office and for other purposes," passed in seven- teen hundred and eighty-three, it is declared that sur- veys made on Indian lands were null and void; and a fine was inflicted on the person making the survey, which, if not paid by the offender, he was punished by impri- sonment. By a subsequent act, a line was fixed for the Indians, which was a boundary between them and the whites. A similar provision is found in other laws of Georgia, passed before the adoption of the constitution. By an act of seventeen hundred and eighty-seven, se- vere corporal punishment was inflicted on those who made or attempted to make surveys, "beyond the temporary line designating the Indian hunting ground."
On the nineteenth of November, eighteen hundred and fourteen, the following resolutions were adopted by the Georgia Legislature.
"Whereas many of the citizens of this State, without regard to existing treaties between the friendly Indians and the United States, and contrary to the interests and good policy of this State, have gone, and are frequent- ly going over, and settling and cultivating the lands al- lotted to the friendly Indians, for their hunting ground, by which means the State is not only deprived of their services in the army, but considerable feuds are engen- dered between us and our friendly neighbouring In- dians:
" Resolved, therefore, by the Senate and House of Re- presentatives of the State of Georgia, in General Assembly met, That his Excellency the Governor be, and is here- by requested to take the necessary means to have all intruders removed off the Indian lands, and that proper steps be taken to prevent future aggressions."
In 1817, the Legislature refused to take any steps to dispose of lands acquired by treaty with the Indians, until the treaty had been ratified by the Senate; and, by a resolution, the Governor was directed to have the line run between the State of Georgia and the Indians, according to the late treaty. The same thing was again done in the year 1819, under a recent treaty.
1832.]
CHEROKEE CASE-JUSTICE MCLEAN'S OPINION.
2447
In a memorial to the President of the United States, by the Legislature of theorgia, in 1819, they say " it has long been the desire of Georgia, that her settlements should be extended to her ultimate limits." "That the soil within her boundaries should be subjected to her control: and, that her police organization and go- vernment should be fixed and permanent.' " That the State of Georgia claims a right to the jurisdiction and soil of the territory within her limits." "She admits, however, that the right is inchoate-remaining to he perfected by the United States, in the extinction of the Indian title; the United States pro hac vice, as their agents."
The Indian title was also distinctly acknowledged by the act of 1793, repealing the Yazoo act. It is there- fore declared, in reference to certain lands, that "they are the sole property of the State, subject only to the right of the treaty of the United States, to enable the State to purchase, under its pre-emption right, the In- lian title to the same;" and also, that the land is vested in the "State, to whom the right of pre-emption to the same belongs, subject only to the controlling power of the United States, to authorize any treaties for, and to su- perintend the same." This language, it will be observ- cd, was used long before the act of cession.
On the twenty-fifth of March, eighteen hundred and twenty-five, the Governor of Georgia, issued the follow- ing proclamation:
"Whereas, it is provided in said treaty, that the United States shall protect the Indians against the encroach- ments, hostilities, and impositions, of the whites, so that they suffer no imposition, molestation, or injury, in their persons, goods, effects, their dwellings, or the lands they occupy, until their removal shall have been accomplish- cd, according to the terms of the treaty:" which had been recently made with the Indians.
" I have therefore thought proper to issue this my proclamation, warning all persons, citizens of Georgia or others, against trespassing or intruding upon lands occupied by the Indians, within the limits of Georgia, cither for the purpose of settlement or otherwise, as every such act will be in direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment, by the au- thorities of the State, and the United States." All good citizens, therefore, pursuing the dictates of good faith, will unite in enforcing the obligations of the trea- ty, as the supreme law, &c.
Many other references might be made to the public acts of the State of Georgia, to show, that she admitted the obligation of Indian treaties, but the above are be- lieved to be sufficient. These acts do honor to the cha- racter of that highly respectable State.
Under the act of cession, the United States were bound, in good faith, to extinguish the Indian title to lands within the limits of Georgia, so soon as it could be done peaceably and on reasonable terms.
The State of Georgia has repeatedly remonstrated to the President on this subject, and called upon the Go- vernment to take the necessary steps to fulfil its en- gagement. She complained that, whilst the Indian title to immense tracts of country had been extinguish- ed elsewhere, within the limits of Georgia but little progress had been made; and this was attributed, either to a want of effort on the part of the Federal Govern- ment, or to the effect of its policy towards the Indians. In one or more of the treaties, titles in fee simple were given to the Indians, to certain reservations of land; and this was complained of, by Georgia, as a direct infrac- tion of the condition of the cession. It has also been asserted, that the policy of the Government, in advance- ing the cause of civilization among the Cherokees, and inducing them to assume the forms of a regular go- vernment and of civilized life, were calculated to in- crease their attachment to the soil they inhabit, and to render the purchase of their title more difficult, if not impracticable.
A full investigation of this subject may not be con- sidered as strictly within the scope of the judicial inqui- ry which belongs to the present case. But, to some extent, it has a direct bearing on the question before the Court, as it tends to show how the rights and powers of Georgia were construed by her public functionaries.
By the first President of the United States, and by . every succeeding one, a strong solicitude has been ex- pressed for the civilization of the Indians. Through the agency of the Government, they have been partial- ly induced, in some parts of the Union, to change the hunter state for that of the agriculturist and herdsman.
In a letter addressed by Mr. Jefferson to the Chero- kees, dated the ninth of January, eighteen hundred and nine, he recommends them to adopt a regular Covern- ment, that crimes might be punished and property pro- tected. Je points out the mode by which a council should be chosen, who should have power to enact laws; and he also recommended the appointment of judicial and executive agents, through whom the laws might be enforced. The agent of the government who resided among them, was recommended to be associated with their enuncil, that he might give the necessary advice on all subjects relating to their government.
In the treaty of eighteen hundred and seventeen, the Cherokees are encouraged to adopt a regular form of Government.
Since that time a law has been passed, making an an- nual appropriation of the sum of ten thousand dollars, as a school fund, for the education of Indian youths, which has been distributed among the different tribes where schools had been established. Missionary labors among the Indians have also been sanctioned by the Government by granting permits, to those who were disposed to engage in such a work, to reside in the In- dian country.
That the means adopted by the General Government to reclaim the savage from his erratic life, and induce him to assume the forms of civilization, have had a ten- deney to increase the attachment of the Cherokees to the country they now inhabit, is extremely probable; and that it increased the difficulty of purchasing their lands, as by act of cession the General Government agreed to do, is equally probable.
Neither Georgia nor the United States, when the cession was made, contemplated that force should be used in the extinguishment of the Indian title; nor that it should be procured on terms that are not reasonable. But, may it not be said with equal truth, that it was not contemplated by either party that any obstructions to the fulfilment of the compact should be allowed, much less sanctioned, by the United States.
The humane policy of the Government towards these children of the wilderness must afford pleasure to every benevolent feeling; and if the efforts made have not proved as successful as was anticipated, still much has been done. Whether the advantages of this policy should not have been held out by the Government to the Cherokees witlun the limits of Georgia, as an in- lucement for them to change their residence and fix it elsewhere, rather than by such means to increase their attachment to their present home, as has been insisted on, is a question which may be considered by another branch of the Government. Such a course might, per- haps have secared to the Cherokee Indians all the ad- vantages they have realized from the parental superin- dence of the Government, and have enabled it, on peaceable and reasonable terms, to comply with the act of cession.
Does the intercourse law, of eighteen hundred and two, apply to the Indians who live within the limits of Georgia? The nineteenth section of that act provides, "that it shall not be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the ordinary jurisdiction of any of the in- dividual states." This provision, it has been supposed,
248
CHEROKEE CASE-JUSTICE MCLEAN'S OPINION.
[APRIL
excepts from the operation of the law the Indian lands which lie within any State. A moment's reflection will show that this construction is most clearly erroneous.
To constitute an exception to the provisions of this act, the Indian settlement, at the time of its passage, must have been surrounded by settlements of the citi- zens of the United States, and within the ordinary juris- diction of a State, not only within the limits of a State, but within the common exercise of its jurisdiction.
No one will pretend that this was the situation of the Cherokees who lived within the State of Georgia in eighteen hundred and two; or, indeed, that such is their present situation. If, then, they are not embraced by the exception, all the provisions of the act of eighteen hundred and two apply to them.
In the very section which contains the exception, it is provided that the use of the road from Washington Dis- trict to Mero District should be enjoyed, and that the citizens of Tennessee, under the orders of the Gover- nor, might keep the road in repair. And in the same section, the navigation of the Tennessee river is reserv- ed, and a right to travel from Knoxville to Price's set- tlement, provided the Indians should not object.
Now, all these provisions relate to the Cherokee country; and can it be supposed by any one, that such provisions would have been made in the act, if Congress had not considered it as applying to the Cherokee coun- try, whether in the State of Georgia or in the state of Tennessee?
The exception applied exclusively to those fragments of tribes which are found in several of the States, and which came literally within the description used.
Much has been said against the existence of an inde- pendent power within a sovereign State; and the con- clusion has been drawn, that the Indians, as a matter of right, cannot enforce their own laws within the terri- torial limits of a State. The refutation of this argu- ment is found in our past history.
That fragments of tribes, having lost the power of self-government, and who lived within the ordinary ju- risdiction of a State, have been taken under the pro- tection of the laws, has already been admitted. But there has been no instance where the State laws have been generally extended over a numerous tribe of In- dians, living within the State, and exercising the right of self-government, until recently.
Has Georgia ever, before her late laws, attempted to regulate the Indian communities within her limits? It is true, New York extended her criminal laws over the remains of the tribes within that State, more for their protection than for any other purpose. These tribes were few in number, and were surrounded by a white population. But, even the State of New York has never asserted the power, it is believed, to regulate their con- cerns beyond the suppression of crime.
Might not the same objection to this interior indepen- dent power, by Georgia, have been urged, with as much - force as at present, ever since the adoption of the con- stitution? Iler chartered limits to the extent claimed, embraced a great number of different nations of Indians, all of whom were governed by their own laws, and were amenable only to them. Has not this been the condition of the Indians within Tennessee, Ohio, and other States?
The exercise of this independent power surely does not become more objectionable, as it assumes the basis of justice and the forms of civilization. Would it not be a singular argument to admit, that, so long as the Indians govern by the rifle and the tomahawk, their government may be tolerated; but, that it must be suppressed, so soon as it shall be administered upon the enlightened principles of reason and justice?
Are not those Indians, who have made some advances in civilization, better neighbours than those who are still in a savage state; and is not the principle, as to their self- government, within the jurisdiction of a State, the same?
ferred on the National Legislature, the exclusive right to regulate commerce or intercourse with the Indians, did she reserve the right to regulate intercourse with the Indians within her limits? This will not be pretend- ed. If such had been the construction of her own powers, would they not have been exercised? Did her Senators object to the numerous treaties which have been formed with the different tribes, who lived within her acknowledged boundaries? Why did she apply to the Executive of the Union, repeatedly, to have the In- dian title extinguished; to establish a line between the Indians and the State, and to procure a right of way through the Indian lands?
The residence of Indians, governed by their own laws, within the limits of a State, has never been deem- ed incompatible with State sovereignty, until recently. And yet, this has been the condition of many distinct tribes of Indians, since the foundation of the Federal Government.
How is the question varied by the residence of the Indians in a territory of the United States? Are not the United States sovereign within their territories? And has it ever been conceived, by any one, that the Indian governments which exist in the territories are incom- patible with the sovereignty of the Union?
A State claims the riglit of sovereignty commensurate with her territory; as the United States claim it, in their proper sphere, to the extent of the Federal limits. This right or power, in some cases, may be exercised, but not in others. Should a hostile force invade the country, at its most remote boundary, it would become the duty of the General Government to expel the invaders. But it would violate the solemn compacts with the Indians, without cause, to dispossess them of rights which they possess by nature, and have always exercised; and which have been uniformly acknowledged by the Federal Go- vernment.
Is it incompatible with State sovereignty to grant ex- clusive jurisdiction to the Federal Government over a number of acres of land, for military purposes? Our forts and arsenals, though situated in the different States, are not within their jurisdiction.
Does not the Constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians, as has been given to them over any other subject? Is there any doubt as to this investiture of power? Has it not been, exercised by the Federal Go- vernment ever since its formation, not only without ob- jection, but under the express sanction of all the States?
The power to dispose of the public domain is an at- tribute of sovereignty. Can the new States dispose of the lands within their limits, which are owned by the Federal Government? The power to tax is also an at. tribute of sovereignty, but, can the new States tax the lands of the United States? Have they not bound them- selves, by compact, not to tax the lands, nor until five years after they shall have been sold? May they violate this compact at discretion?
Why may not these powers be exercised by the re- spective States? The answer is, because they have part. ed with them expressly for the general good. Why may not a state coin money, issue bills of credit, enter into a treaty of alliance or confederation, or regulate com- merce with foreign nations? Because the powers have been expressly and exclusively given to the Federal Go- vernment.
Has not the power been as expressly conferred on the Federal Government, to regulate intercourse with the Indians, and is it not as exclusively given, as any of the powers above enumerated? There being no excep- tion to the exercise of this power, it must operate on all communities of Indians, exercising the right of self- government; and, consequently, includes those who re- side within the limits of a State, as well as others. Such has been the uniform construction of this power, by the Federal Government and of every State Government,
When Georgia sanctioned the constitution, and con- | until the question was raised by the State of Georgia.
1832.]
CHEROKEE CASE-JUSTICE MCLEAN'S OPINION.
249
But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a State, by the General Government? The answer is, that, in its nature, it must be limited by circumstances.
If a tribe of Indians shall become so degraded or re- duced in numbers, as to lose the power of self-govern- ment, the protection of the local law, of necessity, must be extended over them. The point at which this exer- cise of power by a State would be proper, need not now be considered: if indeed it be a judicial question. Such a question does not seem to arise in this case. So long as treaties and laws remain in full force, and apply to In- dian nations, exercising the right of self-government, within the limits of a State, the judicial power can ex- ercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional.
The exercise of the power of self-government by the Indians, within a State, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the Government, in the extinguishment of their title, and especially by the compact with the State of Georgia. It is a question, not of abstract right, but of public policy. I do not mean to say that the same moral rule which should regulate the affairs of private life, should, not be regarded by communities or nations. But a sound national policy does require that the Indian tribes within our States should exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political communities.
At best, they can enjoy a very limited independence within the boundaries of a State, and such a residence must always subject them to encroachments from the settlements around them; and their existence within a State, as a separate and independent community, may seriously embarrass or obstruct the operation of the State laws. If, therefore, it would be inconsistent with the political welfare of the States, and the socialadvance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seeks its exercise beyond the sphere of State authority.
This state of things can only be produced by a co- operation of the State and Federal Governments. The latter has the exclusive regulation of intercourse with the Indians; and, so long as this power shall be exercis- ed, it cannot be obstructed by the State. It is a power given by the Constitution, and sanctioned by the most solemn acts of both the Federal and State Governments: consequently, it cannot be abrogated at the will of a State. It is one of the powers parted with by the States, and vested in the Federal Government. But, if a contingency shall occur, which shall render the In- dians who resido in a State, incapable of self-govern- ment, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a State Government to extend to them the ægis of its laws. Under such circumstances, the agency of the General Government, of necessity, must cease.
But, if it shall be the policy of the Government to withdraw its protection from the Indians who reside within the limits of the respective States, and who not only claim the right of self-government, but have uni- formly exercised it; the laws and treaties which impose duties and obligations on the General Government should be abrogated by the powers competent to do so. So long as those laws and treaties exist, having been formed within the sphere of the federal powers, they must be respected and enforced by the appropriate or- gans of the Federal Government.
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.