Cherokee Phoenix


Published October, 1, 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


By the Articles of Confederation, it is provided, that 'the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade, 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.' and, in the ordinance of 1786, this legislative right was expressly adverted to and recognized. When the Constitution was framed, this proviso was purposely omitted. It does not appear in that instrument; and it is to be recollected, that some of the distinguished men who signed the Articles of Confederation, also affixed their signatures to the Constitution, and were members of that Congress which enacted the first Intercourse Law after its adoption, July 22d, 1700; continued by acts of March 1, 1793; May 19, 1796; March 3, 1799; and made perpetual by act of March 30, 1802. In the fifth section of the act of 1790 a provision is made, which evinces most clearly that the Indians were not considered as within the jurisdiction of any state; for it provides for the punishment of citizens or inhabitants of the United States, who commit crimes in the Indian territories, in the same manner as if the offence had been committed within the jurisdiction of the state of which they were inhabitants or citizens. The same provision is to be found in the 4th section of the act of March, 1793. And in the first act, sales to states are declared void, though they have the preemptive right, unless at a public treaty held under the authority of the United States.

It would seem, from these facts, no other inference could be drawn, than that the framers of the Constitution supposed they had effectually excluded state legislation over the Indian tribes; else why omit in the Constitution what was inserted in the Articles of Confederation less than ten years preceding, and which must have been known, understood, and well considered, by the convention in 1787,- the reservation of the legislation of the states. And why, in the first law that was made, in execution of the power given to Congress, was it necessary to provide for the punishment of crimes, committed on lands belonging to the Indians, declared to be out of the jurisdiction of the states, if they possessed jurisdiction? Contemporaneous exposition is generally a safe rule, both in the construction of constitutional and statute law, and, if it be applied here, establishes the principle, that the states had no power of legislation over the Indian tribes within their limit.

But let it be examined in another point of view. The proviso before referred to, in the Articles of Confederation, may have been inserted, out of abundant caution to prevent any inference, that the right of the states to legislate, on other subjects than the intercourse with and affairs of the Indians, was abridged or taken away; for it would have been absurd to have granted to Congress the sole and exclusive power of regulating the trade, and managing all affairs with the Indians, not members of a state, and then to have added proviso which would have effectually prevented them from the exercise of that power. In this view, the Treaty of Holston, of 1785, is binding under the clause of the Constitution, which provides that all debts, contracts, and engagements, entered into before the adoption of this Constitution, shall be as valid against the United States, under this constitution, as under the Confederation. But the power to regulated commerce with the Indian tribes not only was intended and believed to have excluded state jurisdiction over them, but such is the necessary consequence of the grant of the power. It has been before stated to be exclusive, and of consequence, it denies to the states the exercise of jurisdiction in the regulation of commerce with the tribes. But a want of power to regulated commerce or intercourse with them, is a want of power to effect them, in any manner by legislative enactment. The very circumstance, that intercourse may, and must be had with them in some form, is conclusive, that they are considered and to be treated as a community distinct from our own citizens. Now, how can a state legislate over a body of men, with whom they are prohibited from having any intercourse, except under regulation prescribed by Congress? There is no subject; there is neither territory nor person, on which legislation can act. If Georgia can of right pass a law which operates upon the tribes, she can enforce it; for it is idle to talk of the right to extend its laws to them, if there is no constitutional power to carry them into effect. A right to make and a right to enforce a law must co-exist in the same body. They cannot be separated. Can a law be executed in a territory where an entry on it cannot be made without the assent of a power distinct from that which enacts the law? Let this question be answered, by a reference to the law of Georgia, approved by the governor, December 19. 1829.

The 6th section extends the civil and criminal laws of that state over the Cherokees, and subjects them to the legal process of its courts. The 7th section abolished all their laws, ordinances, orders and regulations. Suppose the Cherokees refuse a compliance with these statute provisions; how is the state to enforce them? If process is issued, can the ministerial officer go into their territory to serve it? What says the intercourse law of March 1802, sec. 3? 'If any citizen of a state of territory, or other person, shall go into any country which is allotted or secured by treaty, to any of the Indian tribes south of the river Ohio without a passport,' obtained in the manner specified in the act, 'he shall forfeit a sum not exceeding fifty dollars, or be imprisoned not exceeding three months.' Would the process of the state of Georgia alone be a protection to an officer who should go among the Cherokees to execute? Would it save him from the penalties of this section of the intercourse law? Would it be 'a good plea in bar,' to an action of debt to recover the penalty, or to an indictment for the offence? Suppose the laws of Georgia to authorize the assessment of a tax upon the Cherokees; could the tax gatherer go into their nation and take their property, to satisfy it? Look at the fourth section of the act of 1802: 'If any citizen, unauthorized by law, and with a hostile intention, shall be found on any Indian land, such offender shall be subject to a pecuniary forfeiture, and imprisonment, and where property is taken, shall pay for it twice its just value.' Would the law of Georgia save him from these penalties and forfeitures? Would it be an available defense, in suits brought to recover them? The 12th section of the law of Georgia makes it murder to take the life of any Indian residing within the chartered limits of Georgia, for enlisting as an emigrant, 'c. contrary to the laws and customs of the Cherokee Nation. Should there be a violation of this section, and its penalty exacted, which is death by hanging, what would be the consequence? Turn again to the Intercourse Act sec. 6: 'If any citizen or other person shall go into any town, settlement, 'c. belonging to any nation or tribe of Indians and shall there commit murder, by killing any Indian, 'c. he shall suffer death.' Would the warrant of execution, issued under the law of Georgia be justification? Would thisbe an available plea at bar?

Is this intercourse law one made in pursuance of the constitution? If it is, it is the supreme law of the land. Let me then inquire, what is the meaning of the expression, 'commerce with the Indian tribes?' The Supreme Court have given an explanation of the phrase. They say, 'Commerce undoubtedly is traffic, but it is something more it is intercourse.' As used in the constitution, 'it is a unit, every part of which is indicated by the term. It cannot stop at the exterior boundary line of each state, but may be introduced into the interior. In the regulation of trade with the Indian tribes, the action of the law, especially when the constitution was made, was chiefly within a state. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states.' What is this power? 'It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. It is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. It is vested in Congress, as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power, as are found in the Constitution of the United States.- As it implies, in its nature, full power over the thing to be regulated, it excludes, necessarily, the action of all others that would perform the same operation on the same thing.' The power, then, given to Congress, is to prescribe the rule by which intercourse with the Indian tribes shall be governed, and excludes the action of all others. Now, can a state legislate over a territory, or a people, where both these subjects of legislation are within the exclusive control of Congress, so far as the Constitution ' treaties have given this control? What kind of legislation is that, which is made to operate upon a community, with whom the law makers are not even permitted to have any intercourse? It seems as though it were impossible successfully to contend, that tribes of Indians could be brought under state laws, when they are without the reach even of ordinary commerce with the states.

But another view may be taken of this part of the subject. The right to regulate intercourse with the Indian tribes includes a right to prohibit altogether, or to place it under certain modifications, as the intercourse law of 1802 does. Now, congress have exercised the power to prohibit commerce or intercourse with foreign nations: they did this when the embargo and non-intercourse laws were passed. These laws have been adjudged valid by the highest judicial tribunal in the country.-- Now, if, under the clause which gives to Congress the right to regulate commerce with foreign nations, all intercourse may be prohibited, surely the same thing may be done as it relates to the commerce with the Indian tribes. And a power to prohibit all intercourse is a power which excludes state legislation, for a state law executed where there is no lawful right to enter into the Indian territory to enforce it.

But let us examine this clause a little further. It is very obvious, that the framers of the Constitution supposed that the Indian tribes were a community distinct from the ordinary citizens of a state. They provided for the regulation of commerce with foreign states, between the states, and with the Indian tribes, that is, with a people not foreigners, not members of the Union, but distinct from them, called tribes.-- They did not profess to regulate intercourse between citizens of the same state. If, however, the states, by virtue of their sovereignty, can legislate over the Indians, it is because they are members of their community, citizens, persons living within their jurisdiction; and thus the power given to Congress to regulate trade with them is annihilated. They are no longer tribes; they lose that distinctive character and appellation, when they are claimed to be members of the state; and thus this clause in the Constitution is a dead letter; it means nothing.

One observation further on this part of the subject. The consent given by states, in the Constitution, that Congress shall have the exclusive power of regulating the trade with the Indians, is a virtual admission, that they are not citizens or inhabitants of the states. They are not only called tribes, but are treated as distinct communities, not incorporated with the states; not a part of their population. Can the United States regulate trade and intercourse with the citizens of a country or a town in any state? Can they make laws to govern a portion of the inhabitants of a state? They certainly can do it, if the Indian tribes are citizens of the states within whose limits they reside. It cannot, however, be seriously contended that the Constitution has vested in Congress any such power, as that which would of necessity result, if the Indians are citizens of the states.

By the Constitution 'power' is given to the President, 'by and with advice and consent of the Senate, to make treaties.' This power is also exclusive, and whenever lawfully exercised, superseded all state legislation inconsistent with it; for by the same Constitution it is provided, 'that all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.'

In pursuance of the power thus given, what at least are called treaties, have been made with the southern Indians. I shall endeavor to show that these treaties, by whatever name they may be called, contain provisions which exclude all legislation over them by the states within whose chartered limits they are located; and that these treaties are 'the supreme law of the land.'

The treaties with the Cherokees are those to which I shall refer; for it is from them we have had memorials soliciting protection from the legislation of Georgia; and those made with other tribes contain similar provisions.

That these treaties in terms, and in the fullest and most solemn manner guaranty to them, forever, all their lands not ceded, is admitted.--Any legislation, either of the United States or the states, which would deprive them of their possessions, would, of course, be an infraction of these compacts. No such legislation, (if the treaties are valid,) which would produce this effect, directly or indirectly, can be admitted. These propositions need no illustration nor argument to support them.

But not only is this species of legislation prohibited, but legislation in every form, and for any purpose, by the states, is equally prohibited.

The Treaty of Holston, July 2, 1791, was the first one made with the Cherokees, after the adoption of the Constitution; and the subsequent treaties are considered and declared to be additional to, and forming a part of, this treaty. Let me now ask the attention of the committee to several clauses in this treaty.

The Cherokees are placed under the protection of the United States, and of no other sovereign whatever; they stipulate not to hold any treaty with any individual state. The United States are vested with the sole and exclusive right of regulating their trade; they may punish at their pleasure any citizen of the United States who settles on their lands; all persons are prohibited from going upon their lands without a passport; they shall deliver up offenders guilty of certain specified crimes against the citizens of the United States, to be punished according to the laws of the latter; ' offenders against them shall be punished as though the crimes had been committed within the territory and jurisdiction of the United States.-- And by the 5th article of the treaty of Hopewell, which in 1790 General Washington declared was in full force, and the provision of which he felt bound to carry into faithful execution, the Indians are admitted to have the power to punish at their discretion and in such manner as they please, those settlers upon their lands who will not remove within six months after the ratification of the treaty.

In the face of these treaty provisions and recognitions, can the states legislate over them? Can they exercise an authority over them, even for protection, when that power is confided to the United States? And what does protection imply? Merely security in the enjoyment of their lands? This term is general, and applies to all their then existing usages and customs. It is to be a protection against all who attempt to intermeddle with them. They have abjured the protection of all sovereignties but the United States. To them is confided the right to regulate trade. To them offenders are to be given up; by them offenders are to be punished. And the United States bind themselves to observe all these stipulations. How is it possible that a state can enact a law which shall operate, in a territory guarantied exclusively to the Indians, and over a community whose relations are declared to exist only with the United States, and whose local jurisdiction is admitted by these provisions to be exclusive of the federal government? And, now, in what light are these treaties to be considered with reference to the character of one of the contracting parties? Do they, or do they not imply and admit, the Indian tribes to be independent of, and not subject to the control of the states, and do they possess any binding force?

Let us attend to the language of General Washington on this subject. On the 22d of August, 1789, he came into the Senate chamber, and asked the advice of the Senate, among other things, on these two points: 'Shall a solemn guaranty' be given 'by the United States to the Creeks of their remaining territory, and to maintain the same, if necessary by a line of military posts?' 'If all offers should fail to induce the Creeks to make the desired cession to Georgia, shall the commissioners make it an ultimatum?' To the first question, the Senate answered in the affirmative; to the second, in the negative. On the 17th September, 1789, General Washington sent a message to the Senate, in which he states, that 'it is important that all treaties and compacts, formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity.' After speaking of the practice of the United States with European nations, not to consider any treaty as conclusive until ratified, and suggesting that the same course would be advisable in relation to treaties made with the Indians, he asks of the Senate their opinion and advice, whether certain Indian treaties were to be considered as obligatory without being ratified; and if not, whether these treaties ought to be ratified? The Senate answer by adopting the following resolution: 'Resolved that the Senate do advise and consent that the President of the United States ratify the treaty.' Can any language be more expressive of the opinion of the President and of the Senate, that these treaties were of the character contemplated by the Constitution, requiring ratification, as made with a nation having the power to enter into them, and therefore as independent, having the power of self-government? And it is to be observed, that the practice, in regard to these Indian treaties, has been uniformly the same from the time to the present.