and Indians' Advocate
Wednesday, December 30, 1829
Vol. II, no. 38
Page 1, col. 1b-5b
From the New York Observer
We proceed on the examination of the proofs adduced by the editor of the Charleston Observer, to sustain his position that "the soil and jurisdiction of Indian lands, is regarded as belonging to the states respectively in which the lands lie;" and that this is "in accordance with repeated decisions of the Supreme Judiciary of the United States."
The editor says:
In the case of Johnson and M'Intosh the Supreme Court thus expressed itself:
"It has never been doubted that either the United States, or the several states had a clear title to all the lands within the boundary lines described in the treaty [of 1783] subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it." - 8 Wheaton's Reports,p. 585.
"The real question presented by the issue was "whether the seizure in fee was in the State of Georgia, on in the United States;" having decided that the seizure in fee was in the State of Georgia, the judgment was that she could olien the lands in fee, although they would be subject to the Indian right of occupancy which had not been extinguished."
We are not disposed to visit with severe censure an ordinary editorial blunder; but when a citation is made from a law book, under such circumstances, and with such an air, as if it were decisive of the controversy, the editor, who makes the citation, should at least give a true account of the point decided. The question, in the case of Johnson and M'Intosh, was not "whether the seizure [seisin] in fee was in the State of Georgia, or in the United States;" but whether grants of land in the wilderness, which is now the State of Illinois, made to private purchasers, citizens of Virginia, in the years 1773 and 1775, by chiefs of Illinois and Piankeshaw tribe of Indians, are good and valid grants, binding on the courts of the United States. The Court decided, that such grants were not valid; and, in course of the decision, went somewhat at length into the consideration of Indian title. We can confidently declare, in this very elaborate and candid discussion, the Court advanced nothing, which has an unfavorable bearing upon the claims of the Cherokees.
The Court said, indeed, that "the United States, or the several states, have a clear title to all the lands within our national limits' What the Court meant by "a clear title" is abundantly explained to be the exclusive right of acquiring the Indian lands. European nations, the colonies of Europeans, and the independent nations of North America, have all claimed that the government, to the exclusion of private purchasers, have the right of acquiring possession of Indian territory; and the foreign nations could not intrude upon the discovery of each other respectively. These principles have been constantly asserted by all the governments above mentioned, that they have become principles of established law; and the Court is bound by them, and cannot go into the consideration of principles of abstract justice. That is, as we all know, it is the duty of the Court to declare what the law is, and apply it, not to make the law. The "clear title," then which the government has to Indian lands, comprises, first the power of excluding foreign nations from intruding upon these lands; secondly, the power of forbidding private men from purchasing them; and thirdly, since the adoption of the federal constitution, the exclusive power of the general government to extinguish Indian title by treaty. All these claims of the government have been admitted by the Cherokees, Creeks, Chickasaws, and Choctaws, in the various treaties now in force. The Indians make no complaint, in regard to these claims. Though their natural rights are circumscribed in this manner, yet they very well know it is for their benefit; and they would be the first to desire, that their communities might be defended from the intrigues of foreign nations, and the fraud of private speculators. They would no more think of complaining that their natural rights are limited, by the claims of the United States, and the stipulations made, for the benefit of both parties, in accordance with these claims, that the people of the United States generally would think of complaining, that the rights of the several states are abridged by the powers given to the general government.
In the passage taken from Wheaton's Reports, the Court said the title of the United States was subject to the Indian right of occupancy.- What does the editor of the Charleston Observer think is meant by a right of occupancy? Let him look again into Wheaton, p. 574, and he will find, that the Court said of the "original inhabitants" of this continent generally. "They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion."
This is said, be it remembered, respecting Indians generally, found in their native condition, and undefended by any guaranty of territory, or any express stipulation in their favor. The Indians, then have the right of occupying their country, of retaining possession of it, of using it according to their discretions, and thus far they have a legal as well as just claim. But they cannot sell, except to the government.
Here we have a clear distinction between the rights of Europeans, as fixed by Europeans themselves, and a thousand times admitted by different tribes of Indians. The original inhabitants have the right of occupying their country and using it as along as they please, according to their discretion; the descendants of Europeans have confided to their government the exclusive power of extinguishing the Indian title.
These principles are sufficient for the absolute defence of the Cherokees, so long as they behave peaceably, and are not disposed to sell their country. But over and above all this, the United States have solemnly guarantied to them their lands;- have covenanted to expel intruders;-have made laws for this purpose; and have, in a hundred instances, admitted that the Cherokee country was under Cherokee jurisdiction, and irresistibly implied, that it was not under the jurisdiction of Georgia. The same thing has been implied, in numberless instances, in the language of the Legislature and Executive of Georgia, as could easily be shown if our limits permitted. These agents of the state have always been in the habit of distinguishing between the "chartered limits," or the "conventional limits," and the actual limits of the state. It is not five years since Governor Troup wrote a letter to the Secretary of War, in which he argued, that the soil and jurisdiction of the Creek country went together; and that both "passed" to the state of Georgia by the treaty of the Indian Spring. If soil and jurisdiction passed to Georgia by treaty, it requires no conjurer to say, that they were not in Georgia before the treaty was made; and of course, that the soil and jurisdiction of the Cherokee country, concerning which no treaty of cession has been made, are not in Georgia.
We make two more quotations from the opinion of the Court in the case of Johnson and M'Intosh:
"It has never been contended, that the Indian title amounted to nothing. Then right of possession has never been questioned. The claim of government extends to the complete ultimate title charged with this right of possession, and to the exclusive power of acquiring that right." p. 603.
We understand the Court here as declaring that all the world admits the rights of the Indians to retain their possession. The government claims the sole power of acquiring of the Indians their unquestioned right of possession; but this claim of the government is always to be understood as charged or incumbered, with the existing occupancy of the Indians. In other words, the right of the Indians to occupy their country as long as they please, is in no wise diminished or affected, by the claim of the government to be the exclusive purchaser; and the claim of exclusive purchase,or, as it has usually be called, this right of pre-emption, is the "ultimate title," of which the Court speaks.
Again: "The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right [that is, the Indian title of occupancy] is no more incompatible with a seisin in fee, than a lease for years is, and might as effectually bar an ejectment."-p.492
Common readers, not being acquainted with legal terms, cannot take the force of this quotation. Let us explain it. If Mr. Prime holds a house in Wall street to himself and his heirs forever, he is said to be seised in fee of that house. He may make a lease of the house, for a valuable consideration to the corporation of the Merchants Exchange, for the term of a thousand years, and the corporation may take possession; still Mr. Prime is seised in fee of the house, and has the ultimate title to him and his heirs. The lease of the house for a thousand years may be worth $100,000 and Mr. Prime's "ultimate title" which is to be enjoyed by his heirs a thousand years hence, would not probably sell at auction for enough to pay a lawyer for making a deed.
Now the Court, in effect, say reverting to the doctrine laid down in the case of Fletcher and Peck, "The decision that the right of pre-emption, which the United States are to exercise for the use of Georgia, may be technically called a seisin in fee, no more proves that Georgia may take possession of the Cherokee country and drive our the natives, or that the grantees of Georgia may bring a suit of ejectment against the Indians, and thus get possession, than the fact that Mr. Prime is seised in fee of a house in Wall street would prove that he might bring an ejectment against the corporation of the Merchants' exchange, when he had himself put the corporation in possession of the premises by a lease of a thousand years."
The Cherokees might as effectually bar an ejectment to use the very words of the Court by pleading that possession to which they have a legal and just claim as in the case supposed the Merchants' Exchange could resist the suit of Mr. Prime, by pleading his own lease a thousand years.
It is natural that people should mistake in regard to the decision of the Court, by the mere sound of the word used; that is, by taking the popular meaning of words, rather than the legal and technical meaning.- Thus, for instance, the "undoubted title" and the "ultimate title" of an acre of land bordering on Wall street, might not be worth five cents; because it might be charged and incumbered, with "the mere right of occupancy," for a certain period, which right of occupancy might be worth a million of dollars. But as to any mistakes of this kind, the Court is not in fault. In making legal decisions, it is often a matter of necessity that technical words should be used.
The Court was not called in either of the cases cited, to say anything about treaties with the Indians; but should these treaties ever come before the court, it will be seen that the "judges" of this Court and of every other Court in the United States are as much "bounded" by them, as by the constitution itself.
The editor of the Charleston Observer, quotes the following words; viz. Congress has the power "of regulating and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any state within its own limits, be not infringed or violated."
Now these words thus set off with italics, seem very important; and perhaps the editor thought them so.- But let it be considered,
1. That this article has been obsolete for more than forty years, having had, during that time,no force whatever.
2. That is was superseded by a provision of the constitution, relating to the same subject. On this provision & the article for which it was a substitute, Mr. Madison thus writes, in the 42d number of the Federalist; "The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of confederation, which renders the provision obscure and contradictory. The power is there restrained to Indians not members of any state, and is not to violate or infringe the legislative right of any state within its limits. What description of Indians are to be deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils."
3. The article never decided, nor professed to decide, what the legislative right of a state was, in regard to Indians within its limits. It implied, that, whatever the legislative right of a state, in regard to Indians, might be ascertained to be, Congress should not infringe such right.
4. The article does not decide what the limits of a state are, nor how they shall be ascertained. In point of fact, the limits of Georgia were disputed by the United States, for more than twenty years after these articles of confederation were adopted.
5. The article was adopted before any of our national treaties were made with the Creeks and Cherokees.
Yet this article, which Mr. Madison pronounced, "obscure and contradictory;" which described neither what sort of Indians were meant,- nor, what the legislative right of a state in regard to Indians was,- nor what the limits of a state were; this article which has been a dead letter for forty years having been superseded by express constitutional provisions now in force, and followed by numerous treaties, containing express provisions on the subject, is brought forward to decide what is the present condition of the Cherokees. Was it brought forward for any other reason, that because the words sounded large to those who knew nothing about the subject?
If the editor of the Charleston Observer did not understand the nature and bearing of the article, he should not have hazarded the leading of his readers into error, on a subject vitally interesting to thousands, many thousands, of human beings, whose present condition and rights ought to be known If he did know the real character and total inapplicability of the article, we cannot dignify his conduct in quoting it, by any better appellation, than that it was throwing dust in the eyes of his readers. Why did he not quote the Treaty of Akerman, or the late Treaty of Adrianoples.- Either of these instruments has as much bearing upon the present condition of the Cherokees as the article has, which was so ostentatiously quoted from the Old Confederation.