Cherokee Phoenix


Published September, 17, 1831

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of the Hon. Jabez Huntington, Representative from Connecticut, delivered in the House of Representatives sitting as in Committee of the whole on the Bill for the Removal of the Indians, Tuesday, May 18, 1830.


In 1777, a treaty of peace was made between South Carolina and the Cherokees, to which Georgia was a party, in which the commissioners of both states and the Cherokees exchanged their full powers, in which a session (sic) is made by the Cherokees of all the lands east of the Unacaye Mountain, to the state of South Carolina, as having been acquired and possessed by that state by conquest; and in the 8th article, it is declared, that the hatchet shall be forever buried, and there shall be a universal peace and friendship re-established between South Carolina, including the Catawba, and Georgia on the one part, and the Cherokee Nation on the other; there shall be a general oblivion of injuries, the contracting parties shall use their utmost endeavors to maintain the peace and friendship now re-established; and the Cherokees shall at all times, apprehend and deliver to the commanding officer at Fort Rutledge, every person, white or red, who, in their nation or settlements, shall, by any means endeavor to instigate a war by the Cherokee Nation, or hostility or robbery by any of their people, against or upon any of the American states or subjects thereof. Can Georgia enter into a treaty with her own citizens, give peace to those who are not enemies, but traitors?

In 1783, another treaty was made between the state of Georgia and the Cherokee Nation, by which peace was established, and a permanent boundary fixed.

It is unnecessary to go farther.- The acts of Georgia furnish unequivocal evidence of her acquiescence in the doctrine, that the Indian tribes within her territorial limits, or right, might maintain the unmolested occupation of their lands. I will now advert to the acts and declaration of the confederated states; and it will be seen that they entirely coincided, on the subject of the Indian title, with the principles assumed and acted on by the crown and the colonies.

In January 1776, Congress resolved, that no person shall be permitted to trade with the Indians, without license from one or more of the commissioners of each respective department.

In September, 1783, a proclamation was issued by the United States in Congress assembled, prohibiting all persons from making any settlement on, purchasing any lands inhabited or claimed by the Indians without the limits or jurisdiction of any particular state; and declaring all such purchases, without the express authority of Congress, void.

In October, 1783, Congress resolved, that a convention be held with the Indians in the northern and middle departments, for the purposes of receiving them into the favor and protection of the United States, and for establishing boundary lines of property.

In March 1785, Congress resolved, that a commission be opened for treating with the Cherokees and all other Indians southward of them; and, in June, 1786, Congress directed the commissioners, who were to hold this treaty for the purpose of obtaining from them a cession of lands, to make such cession as extensive and liberal as possible.

In August, 1786, Congress passed an ordinance for the regulation of Indian affairs, the preamble of which states, that the safety and tranquillity of the frontiers of the United States depend, in some measure, on maintaining a good correspondence between their citizens and the several nations of Indians. This ordinance regulates the intercourse with the tribes.

In November, 1785, the Treaty of Hopewell was made. Its provisions need not be referred to.

It will be seen, that all the acts of the Continental Congress were predicated on the assumed basis, that the Indian tribes had a just and legal right to the occupancy of their lands, indefinitely, and that the only subsisting right of the government to them, was what has heretofore been stated-the exclusive right of purchase, and the ultimate, contingent right in fee.

But the proceedings of the government, after the adoption of the Constitution, if valid, put an end to every question regarding the title of the Indians. In the Treaty of Holston, made with the Cherokees in 1791, the seventh article provides, that the United States solemnly guaranty to the Cherokees all their lands not thereby ceded. When this treaty was transmitted to the Senate, it was referred to a committee consisting of Mr. Hawkins of North Carolina, Mr. Cabot of Massachusetts, and Mr. Sherman of Connecticut, who reported, among other things, that they had examined the treaty, and found it strictly conformable to the instructions given by the President of the United States, and that those instructions were founded on the advice and consent of the Senate, and that the Senate advise and consent to the ratification of the treaty. Various other treaties with the same, and with other tribes, contain a similar provision; and if these treaties have any binding force, it is needless to inquire, what were the rights of the Indians before the conclusion and ratification of these treaties, or what were the rights of the government. The solemn compacts contain a promise of security in possession of their lands, and give them a title, if they had not one before. How far it was competent for the United States to enter into these stipulations, I shall not, in this stage of the discussion, inquire. That I shall consider, when I refer to them, as proving that the states are excluded from making any legislative enactments to effect them.

I have now considered the nature and extent of the Indian title, as recognized by the crown, the colonies, the states, the Continental Congress, and the United States, since the adoption of the constitution. On the subject of this title, it only remains for me to show, as I promised to do, that the title, as thus acknowledged, has received the sanction of the judicial department of this government.

In Fletcher vs. Peck. (6 Cranch pp 142,3) it is said, 'The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state. 'Here is a complete recognition of a title; it is not repugnant to the idea that the state may be seised in fee, because the state has the ultimate dominion, the right expected upon the determination of the state in the Indians; so long as the Indians occupy, the right of the state is dormant; it cannot be exercised.- It is only in the event that the occupancy ceases, or the right to occupy becomes extinct, that the ultimate right of the state can be enforced.- Judge Johnson, in the same case, (pp. 146,7) says, the Indians have the absolute proprietorship of the soil. The uniform practice of acknowledging their right of soil, by purchasing from, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil.'

But it reserved to the court at a latter period to give this subject a great degree of attention, and to investigate, ascertain, and declare the nature and extent of the Indian title. This was done in 1823, and the case of Johnson vs. M'Intosh (8 Wheat) furnishes us with the result. In that case the Chief Justice, delivering the opinion of the court, says, 'The original inhabitants were admitted to be in to be 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. While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claim and exercise as a consequence of this ultimate dominion, a power to grant soil, while yet in the possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. 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 line described in the treaty subject only to the Indian right of occupancy, and that the executive power to extinguish that right was vested in that government, which might constitutionally exercise it.' 'It has never been contended, that the Indian title amounted to nothing. Their 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 tight.'

After these adjudications, confirmatory of all previous practice, legislation, and treaties and giving to that practice the solemn sanction of the united opinion of the bench of the Supreme Court, can it be doubted, that the title of the Indian tribes to lands they occupy is practically as complete, perfect, and absolute, as that of any citizen of this country to the farm on which he lives, and which has descended to him, after having been in the occupation of father and been in the occupation of father and son, from generation to generation? Can the opinions and statements advanced in the report be sustained? 'That the pretensions of the Indians to be owners of any portion of the soil were wholly disregarded by the crown of England; that, where there was reservation of any part of the soil to the natives, they were left to be disposed of as the proprietors thought proper; that one of the expedients of the colony was merely to appear to do nothing which concerned the Indians, either in the appropriation of their hunting grounds, or controlling their conduct without their consent; that this was the general principle of action; and that, in all the acts, first of the colonies,and afterwards by the states, the fundamental principle, that the Indians had no rights by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned either expressly or by implication; that the Indian boundaries defined by treaties, were merely temporary; that the practice of buying Indian titles is but the substitute which humanity and expediency have imposed, in place of the sword, in arriving at the actual enjoyment of property, claimed by the right of discovery, and sanctioned by the natural superiority allowed to the claims of civilized communities over those of savage tribes; that the principle was adopted that they had no permanent interest in their hunting grounds; that treaties were but a mode of government, and a substitute for ordinary legislation, which were from time to time dispensed with; that the essential point in the policy of Georgia was, that the Indian reservations should be gradually contracted within such reasonable limits, that no part of the country should continue uncultivated; that her policy, in this respect, was a part of her rights and that anything which tended to defeat its operation was a deprivation of right.' I will pursue these quotations no farther. They are negated by history, by authenticated records, by universal usage, by legislative acts, and by judicial determinations.

Having thus disposed of the question, what is the nature and extent of the title of Indians to the lands which they occupy; and having shown, I hope, that it is one which, for all practical purposes, is absolute, and limited only by the right of the general government, of exclusive purchase, and of the recessionary interest in fee; I proceed to inquire into and answer the question. Have the states, in which these tribes reside, the power to extend their legislative enactments over them, and thus to abolish, among the tribes, the power of self-government, and the laws, usages and customs, by which their affairs, from time immemorial, have been regulated? If I do not very much mistake, an examination of this subject will result in an entire conviction, that no such power has even existed, nor does any such power now exist.

The advocates of this power insist upon the right claimed and possessed by the crown to exercise it while the United States were colonies; that, by the Declaration of Independence and the treaty of peace, this power, this right of sovereignty and legislation, was transferred to the states, as sovereign, independent communities; that it has never been surrendered by the states to the federal government, but is rather guarantied and secured to them by the Constitution under which that government is founded.

I take the liberty to say, that, in my opinion, but one of these propositions can be sustained, and even that is by no means free from doubt. I refer to that which assumes that the rights of sovereignty and legislation (whatever they were) became vested in the states individually, upon their becoming independent of the crown. To say the least, it might be contended with some plausibility, that these rights became vested in the confederated union first, and afterward, in the government formed under the Constitution, rather than in the individual states. Hence the cautious remark of Chief Justice Marshall (8 Wheaton 585), '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, 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.' Hence the conflicting claims of the United States and the individual states, to unappropriated lands, which were finally adjusted by cessions from the latter to the former. But I do not propose to agitate or discuss that point. My attention will be directed to the other propositions necessary to be sustained by the advocates of the rights of the states.

If the crown had a lawful right to exercise jurisdiction over the Indian tribes without their consent, it must have been derived either from discovery or conquest,

As to the latter, (the right by conquest) it is very obvious that it has no application to these tribes. There are two reasons which would seem to be conclusive on the subject. One is that no conquest was ever made of them; but if there ever was a right by conquest, it is very clear that it was surrendered by the crown, in the treaties which were made with them. In these compacts, the Indians were regarded as possessing the power to make them; they were treated as lawful and necessary parties to them; their claim to territory was acknowledged; boundaries were fixed; and pledges given that no interruption no interference with their respective territorial limits as settled by these treaties, should be allowed. To assert an unlimited right of sovereignty and legislation in the crown, by the force of conquest, is utterly inconsistent with the admitted necessity that the Indian tribes should conclude treaties with the crown, with the circumstances under which they were made, and with their explicit provisions. Hence the Supreme Court say, after speaking of the wars between the whites and the Indians, that the law which regulates and ought to regulate in general the relation between the conqueror and the conquered, was inapplicable to these Indian tribes. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. The one adopted was, as the Indians receded the lands which they thus left unoccupied were parcelled out and granted by the crown; and as to those of which they retain possession, the Indians residing on them were to be considered as occupants, to be protected while in peace, but to be deemed incapable of transferring the absolute title to others.

As to the existence of this right, as emanating from discovery, it is contradicted by the best writers on international law, by the opinions of the most distinguished lawyers and statesmen of Great Britain and this country, and has been repudiated by the Supreme Court of the United States.

The rights acquired by discovery on the part of the nation making it are, simply, the exclusive right to make purchases of the native tribes; to make settlements, and to occupy in pursuance of purchases when made; and an ultimate right in fee, whenever the title of the Indians shall become extinct; and even these rights may be considered as peculiarly and solely confined to the relations subsisting between this country and the aboriginal inhabitants, and do not exist, and are not applicable to the case of any other community of native tribes.- What is called the sovereign power of the nation discovering the country consists in the particulars above mentioned. This attribute of sovereignty, the sole right of purchase, and the ultimate ownership in fee, grown out of the fact of discovery; and so far as it exists, it takes so much from the sovereignty and independence of the Indian tribes. But the power to legislate, to extend it laws over the territory discovered, is confined to its subjects when they make purchases and settlements, and grows out of the obvious principle, that these subjects, purchasing as they must, with the consent of their own sovereign, when they remove and occupy the lands purchased, carry with them the laws under which they previously lived, and in return for the protection which they receive as continuing subjects of their sovereign, become amenable and subject to such legislative enactments as it may be deemed useful and expedient to make. The right to purchase is derived from the crown, the right to occupy from the purchase; and the subjection to the legislation of the crown, from the union of these rights, connected with their national character, and the protection which the nation is bound to afford them. This power to legislate is a branch of the same power which can lawfully make any municipal regulation a power over its own subjects. settled on territory purchased with its consent, and in regard to which it had the exclusive right of purchase.

(To be continued.)