of the Hon, Jabez Huntington, Representative from Connecticut, delivered in the House of Representatives sitting as a Committee of the whole on the Bill for the Removal of the Indians, Tuesday, May 18, 1830.
Let me solicit the attention of the committee to the support which these positions derive from judges, lawyers, and statesmen.
In 1757, Lord Camden, and Mr. Yorke, the King's attorney and solicitor general, officially advised the crown, that the grants to the East Indian Company were subject only to the King's right of sovereignty over the settlements as English settlements, over the inhabitants as English subject, who carry with them the King's laws wherever they form colonies, and receive his protection by virtue of his royal charters. Here the true principle of the right to legislate is clearly stated. It is derived from the fact, that the purchasers are English purchasers; that the settlements consequent on the purchase are English settlements, which form colonies, carry with them English laws, and receive protection by virtue of the patent from the crown; and this part of the opinion seems to have met with the approbation of the Supreme Court of the United States.
In 1755, counsellor Dagge, Sergeant Glyn, Dr. Franklin, and Patrick Henry, gave written opinions in support of the same principles. The lands conveyed by the Indian tribes were taken by the grantees, and held, subject only to the King's sovereignty over the settlements to be established thereon, and over the inhabitants and English subjects. The transfer of the sovereignty to the crown of England was made by the same instrument whereby the land was conveyed, and was effectual to pass it; and the title is under the protection of the laws of England.
But it is unnecessary to refer to English lawyers, or to times as remote as those just mentioned. The Supreme Court of the United States, whose decisions we ought to regard sound expositions of the law, have told us, in language not to be misunderstood, what rights were to be acquired to this country by the discovery of it.
In the case of Johnson vs. M'Intosh, the court say, the principle adopted by the great nations of Europe, on the discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. As a consequence, the nation acquiring the discovery obtained the right of acquiring the soil from the natives and establishing settlement upon it.
The rights of the original inhabitants to complete sovereignty, as independent nations, were necessarily diminished. And why? Because they interfered with the fundamental principle, that discovery gave exclusive title, ultimate dominion, subject to the Indian right of occupancy, to those who made the discovery.
The court say, the United States maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise; or, as it is called, a limited sovereignty over them. This sovereignty is not called absolute-unlimited-but a kind or degree of sovereignty limited or confined, and when taken, as it should be, according to the subject matter, means nothing more than that it existed so far, and to such an extent, as was necessary to preserve inviolate the exclusive right of purchase or, perhaps, as was said by Judge Johnson (6 Cranch, p. 147) the only limitation of the sovereignty of the Indians was the right in the states of governing every person within their limits, except themselves. It may further be observed, that in no instance did the crown ever claim the right to legislate for the Indian tribes, except with their consent, and for their protection against the encroachments of the whites.
I have thus endeavored to show that the crown of England neither possessed nor claimed the right, as derived from discovery, conquest, or otherwise, to extend its laws over the Indian tribes. They were considered as distinct nations or communities, sovereign and independent, excepting, that the right to alienate their lands of pleasure was denied to them; possessing and actually exercising the powers of government, through the medium of their own laws, usages and customs. If this be so, then, by the Declaration of Independence and the Treaty of Peace, Georgia acquired no right to legislate over them, for the crown did not possess it; and, as well observed by the Supreme Court, 'Neither the Declaration of Independence, nor the treaty confirming it, could give the United States more than that which they possessed, or to which Great Britain was before entitled.'
Should it, however, be admitted; that the view thus far taken of this subject is incorrect; that the crown while the states were colonies, possessed and exercised the unlimited right of sovereignty and legislation, and that the states succeeded to this right after the Declaration of Independence; I will ask the committee to follow me in an examination of this subject, under the Constitution, and will endeavor to show, that, if the states had the power of legislation at any time, it was surrendered at the adoption of that Constitution, and that instrument contains a virtual prohibition to the states to extend their legislative enactments over the Indian tribes within their limits.
It should be premised, that the right to legislate over these tribes, if it exist, is in its nature indefinite and unlimited; for, as it has its foundation in the sovereign power of the state, that sovereign power extends to the enactment of all laws to effect the Indian tribes, which could lawfully be made to operate upon its white citizens. And this seems to be the doctrine assumed in the report. The right to legislate is spoken of as growing out of the absolute sovereignty of the state within their territorial limits, and can of course have no limitation in respect to Indians, which it has not in regard to its white population. It must therefore, be admitted, that, if a state can legislate, so as to effect the Indians at all, it can do so to the same extent, as over its own citizens.
This unlimited power of legislation cannot exist, without annihilating the Indian title to their lands. I have heretofore attempted to show what was the nature and extent of that title a right to use and occupy forever; not to be defeated by legislation, but by cession or conquest only; and that this title was not acquired by permission, by treaty, by reservations; but by the original right of occupancy. What becomes of the enjoyment of this right, if a state can lawfully do as Georgia, Mississippi, and Alabama have done-pass laws, abolishing and declaring null and void all laws, ordinances, orders, regulations, usages, and customs of the Indian tribes within their limits? Cannot these states alter the mode of descent, the regulation of alienation, the rights of possession, as known and practised by the Indians? Cannot they impose taxes, and subject their lands to the payment of them? Cannot they make legislative enactments, the necessary and inevitable effect of which will be to drive the Indians from the occupation of their territory? Did not the Secretary of War foresee this consequence, when he stated to the Cherokee delegation, that, in consequence of the power of Georgia to extend her legislative enactments over this nation, the only remedy for the nation was a removal beyond the Mississippi, where alone could be assured to it protection and peace; that, while the tribes continue within the territorial limits of an independent state, they could promise themselves nothing but interruption and disquietude; that beyond the Mississippi there could be no conflicting interests; there the United States could say to them, 'The soil shall be yours while the trees grow or the streams run; but, situated as you now are, no such language can be held to you?' What is the meaning of all this, but that being subjected to the legislation of Georgia, the occupancy of their territory would be disturbed; and that the consequence of their residing within the limits of a sovereign state would eventually be extermination? Let me read to the committee an extract from the speech of a distinguished senator from Mississippi, lately deceased, (Mr. Reid) which I shall have occasion to use for another purpose hereafter, delivered in the Senate of the United States, in 1826: 'He was entirely persuaded that so long as the tribes of Indians within any state of the Union were exempted from the operations of state laws, they never would consent to remove from the territory they occupy: until our legislation can, in some form or other, be brought to act on these people, or those resident among them, they will never consent to abandon their lands. So soon as our laws can reach those abandoned citizens, who settle among them, and become as savage as the Indians themselves, a powerful motive for their continuance will be removed. It is a first step in a system of removal; it is the first step in any system tending to a change of residence.'
If one of the principles advanced in the report be correct, and the Indian title to their lands be what I have stated it to be, it wholly excluded state legislation. The committee say, speaking of the law of the state of New York, 'It was not understood as introducing any new principle. It recognized the general principle, that territory and jurisdiction, considered in reference to a state or nation, are inseparable; that one is a necessary incident to the other; and that, as a state cannot exist without territory, the limits of that territory are, at the same time, the limits of its jurisdiction.' Here the fundamental principle is asserted, that soil and jurisdiction are inseparable from each other; that the right to the soil in a state, ex vi termini, includes the right of sovereignty or jurisdiction over it. It has been shown, that the title to the territory which they occupy, as against the state of Georgia, is practically an absolute title, and by the United States it has been solemnly guarantied to them. If so, then the attribute of sovereignty, said to be necessarily incident to the right of soil, attaches to it; for it can hardly be claimed, that what is a correct rule, as applied to civilized nations ought not to be applied to Indian tribes. It would seem, therefore, to be a necessary consequence, from the positions taken in the report, that the Indians possess the right of sovereignty over their lands, if they are the owners of the lands; and I have endeavored to show, in a former part of this discussion, that they are the owners of the soil, for every practical purpose of absolute ownership.
Another objection to the right of legislation, by the states, is derived from its non user, (if the expression may be allowed,) by Georgia at all times. It is now more than fifty years since the Declaration of Independence, and more than forty since the adoption of the Constitution; and, until within a little more than a year, no such right was ever claimed. Whence this silence? Whence this acquiescence in the legislation of the federal government? Whence the repeated and reiterated demands upon the government to extinguish the Indian title? Does the doctrine so lately advanced of state sovereignty, comport with the language of the report, that 'it is understood Georgia will not attempt to appropriate the lands within the Indian reservations without their consent?' Does it not look to the operation of state laws as a sure and speedy mode of extinguishing actual occupancy, if not of title? Has it not this for its object? For what other purpose can the state desire to legislate over them; not to subject them to the performance of civil or military duties not to make them citizens, and amalgamate them with their white population. The State can have no such object in view. Can any other motive be assigned, than indirectly to force them to remove, by bringing the action of legislation to bear upon them? If such be the object; if the power existed, why was it never before claimed or exercised? Why was the federal government to extinguish the title, to purchase the right of occupancy? Can this long acquiescence on the part of Georgia, in the exercise of self-government by the Cherokees, be accounted for in any than by a full admission that the right so to exercise it belonged to that tribe?
If the power of legislation exists, how are these Indians to be regarded? as citizens, aliens, or denizens? Not as citizens it would seem; for the law already passed nearly outlaws them. It does not, indeed, declare them incompetent to sue as plaintiffs in the courts of Georgia, but it has all practical consequences of outlawry; for they are deprived of the benefit of the only testimony which would generally exist, to sustain their legal rights. Not only no Indian can testify for another, where a white man, not residing in the nation, is the adverse party, but no descendant of one, however remote, is a competent witness. The rights of personal liberty and private property, so far as it regarded the Indians, are, by this law practically annihilated. It is clear they are not aliens, residing within the jurisdiction of the states; for if so, whose subjects are they? They are not denizens; for a state cannot make them such. They have not been made citizens by naturalization; for a state cannot make them such, in that manner. If, then, they are subject to the municipal regulations of the state, it is because they are and from the period of the Declaration of Independence have been, citizens of the state. If citizens, they may be prosecuted-bigamy, treason, 'c. 'c. If citizens, they are to be enumerated in the census, and to form a part of the basis of representation, if taxed. Now, did the framers of the Constitution ever suppose, that, by exercising the power of taxation, the whole of the Indian tribes within the limits of the states, could be represented on the floor of Congress? Would Georgia have a right to send one of the Chiefs, or head men of these tribes, as a representative, or senator to the national legislature? The Old Congress did not think so, when it was provided, in the Treaty of Hopewell, that the Indians should have the right to send a deputy of their choice, whenever they should think fit, to Congress. They never were, at any time, considered as subject of Georgia; but if they are now, they always have been, since July 4, 1776; and a new basis of representation is to be made after the year 1831, for the states within whose limits Indian tribes reside. The law of Mississippi, if a valid one, has completely effected this object; for, while it abolishes the laws and usages of the Indians, it confers on them the rights of citizens, and subjects them to the operation of all the laws, statutes, and ordinance of the state; and the 23d Congress will, perhaps, have one additional representative from Mississippi by force of this legislative enactment.
The power to extend the municipal regulation of the state of Georgia over the Indians, if it ever existed is taken away by the Constitution, and cannot now, consistently with the provisions of that instrument, be exercised.
I suppose that it will be admitted, that the state, by adopting the Constitution, is bound in good faith by its provision, and cannot claim to exercise any rights which, by that instrument are conferred exclusively on the general government, or prohibited to the state. A denial of this principle would, of course, be a denial of any paramount authority of the constitution, and reduce the government to what it was under the Articles of Confederation.
By the Constitution, Congress have power to 'regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Whatever the extent of this power may be, so far as it exists, and may be lawfully exercised, it is exclusive. It must necessarily be so; for, if it exist both in the states and in the federal government, it becomes nugatory in the hands of either. The regulations of the state and of Congress might conflict with each other; and which is to yield? Neither, if the power may be exercised by both. This point has, however, been settled by the Supreme Court. That tribunal has decided, that the power given to Congress under this clause of the Constitution, is exclusive, and amounts to a prohibition to the states to exercise it.
I shall not stop to comment upon the suggestion, that it is not said Congress shall have power to regulate commerce with the Indian tribes within the states, for the expression is general; it is made to extend to all Indian tribes, and must include those within, as well as those without the territorial limits of a state. But there were no Indians in the United States who were not, at the time of the adoption of the Constitution within the territorial limits of some state. Such has uniformly been the construction of this clause of the constitution and it has received the sanction of the Supreme Court.
This power in my opinion, forbids all control over the Indian tribes within the limits of Georgia, through the medium of her laws. It was, I think, so intended, and must of necessity be so.