The case of the Cherokee Nation against the State of Georgia; argued and determined in the Supreme Court of the United States, January Term, 1831.
OPINION OF THE MINORITY
Mr. Justice THOMPSON- Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the court, and considering the importance of the case and the constitutional principle involved in it, I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed.
In the opinion pronounced by the court, the merits of the controversy between the state of Georgia and the Cherokee Indians have not been taken into consideration. The denial of the application for an injunction has been placed solely to the want of jurisdiction in this court to grant relief prayed for. It became, therefore, unnecessary to inquire into the merits of the case. But thinking as I do that the court has jurisdiction of the case, and may grant relief, at least in part, it may become necessary for me, in the course of my opinion to glance at the merits of the controversy, which I shall however, do very briefly as it is important so far as relates to the present application.
Before entering upon the examination of the particular points which have been argued, and for the purpose of guarding against any erroneous conclusions, it is proper that I should state that I do not claim for this court, the exercise of jurisdiction upon any matter properly under the denomination of political power. Relief to the full extent prayed by the bill may be beyond the reach of this court. Much of the matter therein contained by way of complaint would seem to depend for relief upon the exercise of political power; ' as such appropriately devolving upon the executive and not the judicial department of the government. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed.
It would very ill become the judicial station which I hold, to indulge in any remark upon the hardships of the case, or the great in justice that would seem to have been done to the complainants according to the statement in the bill, and which for the purpose of the present motion I must assume to be true. If they are entitled to other than the judicial relief, it cannot be admitted that in a government like ours, redress is not to be had in some of its departments; and the responsibility for its denial must rest upon those who have the power to grant it. But believing as I do, that relief to some extent falls properly under judicial cognizance, I shall proceed to the examination of the case under the following heads.
1. Is the Cherokee Nation of Indians a competent party to sue in this court?
2. Is a sufficient case made out in the bill, to warrant this court in granting any relief?
3. Is an injunction the fit and appropriate relief?
1. By the Constitution of the United States it is declared (Art. 3 s. 2.) that the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, 'c. and between a state or the citizens thereof, and foreign states, citizens or subjects.
The controversy in the present case is alleged to be between a foreign state, and one of the states of the union; and does not therefore, come within the eleventh amendment of the Constitution, which declares that the judicial power of the United States, shall not be construed to extend to an suit in law or equity commenced or prosecuted against one of the United States by citizens of another state; or by citizens or subjects of any foreign state. This amendment does not, therefore, extend to suits prosecuted against one of the United States, by a foreign state. The Constitution further provides, that in all cases where a state shall be a party, the Supreme Court shall have original jurisdiction. Under these provisions in the constitution, the complainants have filed their bill in this court, in the character of a foreign state, against the state of Georgia;-praying an injunction to restrain that state from committing various alleged violations of the property of the nation, claimed under the laws of the United States, and treaties made with the Cherokee Nation.
That a state of this union may be sued by a foreign state, when a proper case exists and is presented, is too plainly and expressly declared in the Constitution to admit of doubt; and the first inquiry is whether the Cherokee Nation is a foreign state, within the sense and meaning of the constitution.
The terms state and nation are used in the law of nations, as well as in common parlance, as importing the same thing; and imply a body of men united together, to procure their mutual safety and advantage by means of their union. Such a society has its affairs and interests to manage; it deliberates and takes resolutions in common, and thus becomes a moral person, having an understanding and a will peculiar to itself, and is susceptible of obligations and laws. Vattel, 1. Nations being composed of men, naturally free, and independent, and who, before the establishment of civil societies, live together in a state of nature, nations or sovereign states, are to be considered as so many free persons living in a state of nature.- Vattel 2, s. 4. Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient if it be really sovereign and independent: that is, it must govern itself by its own authority and laws. we ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The condition of these unequal alliances may be infinitely varied; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state.- Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease on this account to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self government, and sovereign and independent authority is left in the administration of the state. Vattel, c.1, pp. 16,17.
Testing the character and condition of the Cherokee Indians by these rules, it is not perceived how it is possible to escape the conclusion, that they form a sovereign state.- They have always been dealt with as such by the government of the United States; both before and since the adoption of the constitution.- They have been admitted and treated as a people governed solely and exclusively by their own laws, usages, and customs within their own territory; claiming and exercising exclusive dominion over the same; yielding up by treaty, from time to time, portions of their land, but still claiming absolute sovereignty and self government over what remained unsold. And this has been the light in which they have, until recently, been considered from the earliest settlement of the country by the white people. And indeed, I do not understand it is denied by a majority of the court, that the Cherokee Indians form a sovereign state according to the doctrine of the law of nations; but that, although a sovereign state, they are not considered a foreign state, within the meaning of the Constitution.
Whether the Cherokee Indians are to be considered a foreign state or not, is a point on which we cannot expect to discover much light from the law of nations. We must derive this knowledge chiefly from the practice of our own government, and the light in which the Nation has been viewed and treated by it.
That numerous tribes of Indians, and among others, the Cherokee Nation occupied many parts of this country long before the discovery by Europeans, is abundantly established by history; and it is not denied but that the Cherokee Nation occupied the territory now claimed by them long before that period. It does not fall within the scope and object of the present inquiry, to go into a critical examination of the nature and extent of the rights growing out of such occupancy, or the justice and humanity with which the Indians have been treated, or their rights respected.
That they are entitled to such occupancy, so long as they choose quietly and peaceably to remain upon the land, cannot be questioned. The circumstance of their original occupancy is here referred to, merely for the purpose of showing, that if these Indian communities were then, as they certainly were, nations, they must have been foreign nations to all the world; not having any connection, or alliance of any description, with any other power on earth. And if the Cherokees were then a foreign nation, when or how they have lost that character, ' ceased to be distinct people, and become incorporated with any other community?
They have never been, by conquest reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence, and the rights of self government, and become subjects to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side according to existing circumstances; the Indian Nation always preserving its distinct and separate national character. And notwithstanding we do not recognize the right of the Indians to transfer the absolute title of their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self government, according to their own usages, and customs; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection so far as is requisite for public safety. But the principle is universally admitted, that this occupancy belongs to them as a matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it without their free consent; or unless a just and necessary war should sanction their dispossession.
In this view of their situation, there is a full and complete recognition of their sovereignty, as if they were absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national and foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political position that constitutes their foreign character, and in that sense must the term foreign be understood as used in the Constitution. It can have no relation to local, geographical, or territorial position. It cannot mean a country beyond sea. Mexico and Canada is certainly to be considered a foreign country, in reference to the United States. It is the political relation in which one government or country stands to another which constitutes it foreign to the other. The Cherokee territory being within the chartered limits of Georgia, does not affect the question. When Georgia is spoken of as a state, reference is had to its political character and not to boundary; and it is not perceived that any absurdity or inconsistency grown out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee territory. It may be inconvenient to the state, and very desirable, that the Cherokees should be removed; but it does not at all affect the political relation between Georgia and those Indians. Suppose the Cherokee territory had been occupied by Spaniards instead of Indians, and they had from time to time ceded to the United States portions of their lands precisely in the same manner as the Indians have done, and in like manner retained and occupied the part now held by the Cherokees, and having a regular government established there; would it not only be considered a separate and distinct nation or state, but a foreign nation, with reference to the State of Georgia, and the United States. If we look to lexicographers, as well as approved writers, for the use of the term foreign, it may be applied with the strictest propriety to the Cherokee Nation.
In a general sense it is applied to any person or thing belonging to another nation or country. We call an alien a foreigner, because he is not of the country in which we reside. In a political sense we call every jurisdiction of the same government. In this sense, Scotland before the union was foreign to England; and Canada and Mexico foreign to the United States. In the United States all transatlantic countries are foreign to us. But this is not the only sense in which it is used.
It is applied with equal propriety to an adjacent territory, as to one more remote. Canada and Mexico is as much foreign to us as England or Spain. And it may be laid down as a general rule, that when used in relation to countries in a political sense, it refers to the jurisdiction or government of the country. In a commercial sense, we call all goods coming from any country not within our own jurisdiction, foreign goods.
In the diplomatic use of the term, we call every minister a foreign minister who comes from another jurisdiction or government. And this is the sense in which it is judicially used by this court, even as between the different states of this union. In the case of Buckner vs. Finley, 2 Peters, 590, it was held that a bill of exchange drawn in one state of the union, on a person living in another state, was a foreign bill, and to be treated as such in the courts of the United States. The court says that in applying the definition of a foreign bill, to the political character of the several states of this union, in relation to each other, we are all clearly of opinion, that bills drawn in one of these states upon persons living in another of them, partake of the character of foreign bills, and ought to be so treated. This for all national purposes embraced by the federal constitution, the states and citizens therefore are one; united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign to, and independent of each other; their constitutions and forms of government being although republican, altogether different, as are their laws and institutions. So, in the case of Warder vs. Arrell, decided in the Court of Appeals of Virginia, 2 Wash. 298. The court in speaking of foreign contracts, and saying that the laws of the foreign country where the contract was made, must govern, add- the same principle applies, although with no greater force to the different status of Americans for though they form a third individual sovereignties, and, with respect to their municipal regulations, are to each other foreign.
It is manifest from these cases, that a foreign state, judicially considered, consists in its being under a different jurisdiction or government, without any reference to its territorial position. This is the marked distinction particularly in the case of Buckner vs. Finlay. So, far as those states are subject to the laws of the union, they are not foreign to each other. But so far as they are subject to their own respective state laws and government, they are foreign to each other. And if, as here decided, a separate and distinct jurisdiction or government is the test by which to decide whether a nation be foreign or not. I am unable to perceive any sound and substantial reason why the Cherokee Nation should not be so considered.- It is governed by its own laws, usages and customs; it has no connection with any other government or jurisdiction, except by way of treaties entered into with like form and ceremony as with other foreign nations. And this seems to be the view taken of them by Mr. Justice Johnson in the case of Fletcher vs. Peck. 6 Cranach, 146;2 Peter's condens. Rep. 308.
In speaking of the state and condition of the different Indian Nations, he observes, 'that some have totally extinguished their national fire, and submitted themselves to the laws of the states; others have by treaty acknowledged that they hold their national existence at the will of the state, within which they reside; others retain a limited sovereignty, and the absolute proprietorship of their soil.- The latter is the case of the tribes to the west of Georgia, among which are the Cherokees. We legislate upon the conduct of strangers or citizens within their limits, but innumerable treaties formed with them acknowledge them to be an independent people and the uniform practice of acknowledging their right of soil by purchasing from them and re- [See fourth page.] straining all persons from encroaching upon their territory makes it unnecessary to insist upon their rights of soil.'
Although there are many cases in which one of these United States has been used by another, I am not aware of any instance in which one of the United States has been used by a foreign state. But no doubt can be entertained that such an action might be sustained upon a proper case being presented. It is expressly provided for in the Constitution; and this provision is certainly not to be rejected as entirely nugatory.
Suppose a state with the consent of congress should enter into an agreement with a foreign power (as might undoubtedly be done, Constitution, Art. 1, s. 10) for a loan of money; would not an action be sustained in this court to enforce payment thereof? Or suppose the state of Georgia, with the consent of congress should purchase the right of the Cherokee Indians to their territory, and enter into a contract for the payment of the purchase money; could there be a doubt that an action could be sustained upon such a contract? No objection would certainly be made for want of competency in the Nation to make a valid contract. The numerous treaties entered into with the Nation would be a conclusive answer to any such objection. And if an action could be sustained in such case, it must be under the provision in the Constitution which give jurisdiction to this court in controversies between state and a foreign state. For the Cherokee Nation is certainly not one of the United States.
And what possible objection can lie to the right of the complainants to sustain an action The treaties made with this nation purport to secure to it certain rights. These are not gratuitous obligations assumed on the part of the United States. There are obligations founded upon a consideration paid by the Indians by cession of part of their territory. And if they, as a nation, are competent to make a treaty or contract. It would seem to me to be a strange inconsistency to deny to them the right and the power to enforce such a contract. And where the right secured by such treaty forms a proper subject for judicial cognizance, I can perceive no reason why this court has not jurisdiction of the case. The Constitution expressly gives to the court jurisdiction in all cases of law and equity under treaties made with the United States. No suit will lie against the United States upon such treaty, because no possible case can exist where the United States can be sued. But not so with respect to a state; and if my right secured by treaty has been violated by a state, in a case proper for judicial inquiry, no good reason is perceived why an action may not be sustained for violation of a right secured by treaty, as well as by contract under any other form. The judiciary is certainly not the department of the government authorized to enforce all rights that may be recognized and secured by treaty. In many instances, these are mere political rights with which the judiciary cannot deal. But when the question relate to a mere right of property, and a proper case can be made between competent parties, it forms a proper subject for judicial inquiry.
It is a rule which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states or nations those powers that are recognized as such by the executive and legislative departments of the government; they being more particularly entrusted with our foreign relations. 4 Cranch, 241, 2 Peter's Cond. Rep. 68; 3 Wheat. 684, 4 Wheat. 64.
If we look to the whole course of treatment by this country of the Indians, from the year 1885 (sic) to the present day, when dealing with them in their aggregate capacity as nation or tribes and regarding the mode and manner in which all negotiations have been carried on and concluded with them, the conclusions appear to be irresistible, that they have been regarded, by the executive and legislative branches of the government, not only as sovereign and independent; but as foreign nations or tribes, not within the jurisdiction nor under the government of the states within which they are located. This remark is to understood, of course, as referring only to such as live together as a distinct community, under their own laws, usages and customs; and not to the mere remnant of tribes which are to be found in many parts of our country, who have become mixed with the general population of the country; their national character extinguished; and their usages and customs in great measure abandoned; self-government surrendered; and who have voluntarily or by force of circumstances which surrounded them, gradually become subject to the laws of the states within which they are situated.
Such however, is not the case with the Cherokee Nation. It retains its usages and customs and self-government, greatly improves by the civilization which it has been the policy of the United States to encourage and foster among them. All negotiations carried on with the Cherokees and other Indian nations have been by way of treaty with all the formality attending the making of treaties with any foreign power. The journals of Congress, from the year 1775 down to the adoption of the present Constitution, abundantly establish this fact. And since that period, such negotiations have been carried on by the treaty-making power, and uniformly under the denomination of treaties.
What is a treaty, as understood in the law of nations? It is an agreement or contract between tow or more nations or sovereigns, entered into by agents appointed for that purpose, and duly sanctioned by the supreme power of the respective parties. And where is the authority, either in the Constitution or in the practice of the government for making any distinction between treaties made with the Indian Nations and any other foreign power? They relate to peace and war; the surrender of prisoners; the cession of territory, and the various subjects which are usually embraced in such contracts between sovereign nations.
A recurrence to the various treaties made with the Indian Nations and tribes in different parts of the country, will fully illustrate this view of the relation in which our government has considered the Indians as standing. It will be sufficient, however, to notice a few of the treaties made with the Cherokee Nation.
By the Treaty of Hopewell of the 28th November 1785, I Laws United States 322, mutual stipulations are entered into to restore all prisoners taken by either party, and the Cherokees stipulate to restore all negroes, and all other property taken from the citizens of the United States; and a boundary line is settled between the Cherokees and the citizens of the United States, and this embraced territory within the chartered limits of Georgia. And by the sixth article it is provided, that if any Indian or person residing among them, or who shall take refuge in their Nation, shall commit a robbery, or murder, or any other capital crime on any citizen of the United States, or persons under their protection, the Nation or tribe to which such offender may belong shall deliver him up to be punished according to the ordinances of the United States. What more explicit recognition of the sovereignty and independence of this Nation could have been made? It was a direct acknowledgement, that this territory was under a foreign jurisdiction. If it had been understood that the jurisdiction of the state of Georgia extended over this territory, no such stipulation would have been necessary. The process of the Courts of Georgia, would have run into this as well as into any other part of the state. It is a stipulation analogous to that contained in the treaty of 1794 with England. 1 Laws United States 320, by the 27th article of which, it is mutually agreed, that each party will deliver up to justice, all persons who, being charged with murder or forgery committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other. Upon what ground can any distinction be made, as to the reason and necessary of such stipulation in the respective treaties. The necessity for the stipulation in both cases must be because the process of one government and jurisdiction will not run into that of another; and separate and distinct jurisdiction, as has been shown, is what makes governments and nations foreign to each other in their political relations.
The same stipulation, as to delivering up criminals who shall take refuge in the Cherokee Nation is contained in the Treaty of Holston of the 2d of July 1791, 1 Laws United States 327. And the eleventh article fully recognizes the jurisdiction of the Cherokee Nation over the territory occupied by them. It provides, that if any citizen of the U. S. shall go into the territory belonging to the Cherokees, and commit any crime upon, or trespass against the person, or property of any friendly Indian, which, if committed within the jurisdiction of any state, would be punishable by the laws of such state, shall be subject to the same punishment, and proceeded against in the same manner, as if the offence had been committed within the jurisdiction of the state. Here is an explicit admission that the Cherokee territory is not within the jurisdiction of any state. If it had been considered within the jurisdiction of Georgia, such a provision would not only be unnecessary but absurd. It is a provision looking to the punishment of a citizen of the United States for some act done in a foreign country. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it a foreign state, the Cherokee Nation may assuredly with the greatest propriety be so considered.
The phraseology of the clause in the Constitution, giving to Congress the power to regulate commerce, is supposed to afford an argument against considering the Cherokees a foreign nation. The clause reads thus, 'to regulate commerce with foreign nations, and among the several States, and the Indian tribes.' Constitution, Art. 1, s 8. The argument is, that if the Indian tribes are foreign nations, they would have been included, without being specially named, and being so named imports something different from the previous term of 'foreign nation.'
This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion, that Indians are not foreign nations. But the clause affords, irresistibly, the conclusion, that the Indian tribes are not there understood as included within the description of the 'several States;' or there could have been nor fitness in immediately thereafter particularizing 'the Indian tribes.'
It is generally understood that every separate body of Indians is divided into bands or tribes, and form a little community within the Nation to which it belongs; and as the Nation has some particular symbol by which it is distinguished from others, so each tribe has a badge from which it is denominated, and each tribe amy have rights applicable to itself.
Cases may arise where the trade with a particular tribe may require to be regulated, and which might not have been embraced under the general description of the term nation, or it might at least have left the case somewhat doubtful; as the clause was intended to vest in Congress the power to regulate all commercial intercourse, this phraseology was probably adopted to meet all possible cases, and the provision would have been imperfect, if the term 'Indian tribes had been omitted.
Congress would not then have regulated the trade with any particular tribe that did not extend to the whole nation. Or, it may be, that the term tribe is here used as importing the same thing as that of the term nation, and adopted merely to avoid the repetition of the word nation; and the Indians are specially named, because there was a provision somewhat analogous in the confederation; and entirely omitting to name the Indian tribes, might have afforded some plausible grounds for concluding that this branch of commercial intercourse was not subject to the power of Congress.
On examining the journals of the old Congress, which contain numerous proceedings and resolutions respecting the Indians, the terms 'nation' and 'tribe,' are frequently used indiscriminately, and as importing the same thing; and treaties were sometimes entered into with the Indians, under the description or denomination of tribes, without naming the nation. See Journals 80th (sic) June and 12th July, 1775; 7th March, 1776, 20th October, 1777, ' numerous other instances.
But whether any of these suggestions will satisfactorily account for the phraseology here used or not, it appears to me to be of too doubtful import to outweigh the considerations to which I have referred to show that the Cherokees are a foreign nation. The difference between the provision in the Constitution and that in the confederation on this subject appears to me to show very satisfactorily, that so far as related to trade and commerce with the Indians wherever found in tribes, whether within or without the limits of a state, was subject to the regulation of congress.
The provision in the confederation; Art. 9. 1 Laws United States, 17, is that Congress shall have the power of regulating the trade and management of 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. The true import of this provision is certainly not very obvious; see Federalist, No. 42. What were the Legislative rights intended to be embraced within the proviso is left in great uncertainty. But whatever difficulty on that subject might have arisen under the confederation, it is entirely removed by the omission of the proviso in the present Constitution; thereby leaving this power entirely with congress, without regard to any state right on the subject: and showing that the Indian tribes were considered as distinct communities although within the limits of a state.
The provision as contained in the confederation may aid in illustrating what is to be inferred from some parts of the Constitution, Art. 1, s. 1. par. 4. as to the apportionment of representatives, and acts of Congress in relation to the Indians, to wit, that they are divided into two distinct classes. One composed of those who are considered members of the state within which they reside, and the other not: the former embracing the remnant of the tribes who had lost their distinctive character as a separate community, and had become subject to the laws of the state; and the latter such as still retained their original connection as tribes, and live together under their own laws, usages and customs, and as such are treated as a community independent of the state. No very important conclusion I think, therefore, can be drawn from the use of the term 'tribe' in this clause of the Constitution; intended merely for commercial regulations. If considered as importing the same thing as the term 'nation' it might have been adopted to avoid the repetition of the word nation.
Other instances occur in the Constitution where different terms are used importing the same thing. Thus in the clause giving jurisdiction to this court, the term 'foreign states' is used instead of 'foreign nations' as in the clause relation to commerce. And again, in Art. 1, s. 40, a still different phraseology is employed.- 'No state, without the consent of congress, shall enter into any agreement or compact with a foreign power.' But each of these terms, nation, state, power, as used in different parts of the Constitution, imports the same thing, and does not admit of a different interpretation.- In the treaties made with the Indians, they are sometimes designated under the name of tribe and sometimes that of nation. In the treaty of 1804 with the Delaware Indians, they are denominated the 'Delaware tribe of Indians.' 1 Laws United States, 303. And in a previous treaty with the same people in the year 1778, they are designated by the name of 'the Delaware Nation'- 1 Laws United States, 302.
As this was one of the earliest treaties made with the Indians, its provisions may serve to show in what light the Indian Nations were viewed by Congress at that day.
The territory of the Delaware Nation was within the limits of the states of New York, Pennsylvania, and New Jersey. Yet we hear of no claim of jurisdiction set up by these states over these Indians.- This treaty, both in form and substance purports to be an arrangement with an independent sovereign power. It even purports to be articles of confederation. It contains stipulation relative to peace and war, and for permission to the United States troops to pass through the country of the Delaware Nation. That neither party shall protect in their respective states, servants, slaves, or criminals, fugitives from the other; but secure, and deliver them up.- Trade is regulated between the parties. And the sixth article shows the early pledge of the United States to protect the Indians in their possessions, against any claims or encroachments of the states. It recites, that whereas the enemies of the United States have endeavored to impress the Indians in general with an opinion that it is the design of the states to extirpate the Indians, and take possession of their country, to obviate such suggestions, the United States do engage to guaranty to the aforesaid Delawares and their heirs, all their territorial rights, in the fullest and most ample manner as it has been bound by former treaties, 'c. And provision is even made to invite other tribes to join the confederacy; and to form a state; and have a representation in Congress; should it be found conductive to the mutual interest of both parties. All which provisions are totally inconsistent with the idea of these Indians being considered under the jurisdiction of the states; although their chartered limits might extend over them.
The recital, in this treaty contains a declaration and admission of congress of the rights of Indians in general; and that the impression which our enemies were endeavoring to make, that it was the design of the states to extirpate them and take their lands was false. And the same recognition of their rights run through all the treaties made with the Indian nations or tribes, from that day down to the present time. (To be concluded.)