_February 22, 1831_.
_To the Senate of the United States_:
I have received your resolution of the 15th instant, requesting me "to
inform the Senate whether the provisions of the act entitled 'An act to
regulate trade and intercourse with the Indian tribes and to preserve
peace on the frontiers,' passed the 30th of March, 1802, have been fully
complied with on the part of the United States Government, and if they
have not that he inform the Senate of the reasons that have induced the
Government to decline the enforcement of said act," and I now reply to
the same.
According to my views of the act referred to, I am not aware of any
omission to carry into effect its provisions in relation to trade and
intercourse with the Indian tribes so far as their execution depended on
the agency confided to the Executive.
The numerous provisions of that act designed to secure to the Indians
the peaceable possession of their lands may be reduced, substantially,
to the following: That citizens of the United States are restrained
under sufficient penalties from entering upon the lands for the purpose
of hunting thereon, or of settling them, or of giving their horses and
cattle the benefit of a range upon them, or of traveling through them
without a written permission; and that the President of the United
States is authorized to employ the military force of the country to
secure the observance of these provisions. The authority to the
President, however, is not imperative. The language is:
It shall be lawful for the President to take such measures and to
employ such military force as he may judge necessary to remove from
lands belonging to or secured by treaty to any Indian tribe any
citizen who shall make a settlement thereon.
By the nineteenth section of this act it is provided that nothing in it
"shall be construed to prevent any trade or intercourse with Indians
living on lands surrounded by settlements of citizens of the United
States and being within the ordinary jurisdiction of any of the
individual States." This provision I have interpreted as being
prospective in its operation and as applicable not only to Indian tribes
which at the date of its passage were subject to the jurisdiction of any
State, but to such also as should thereafter become so. To this
construction of its meaning I have endeavored to conform, and have taken
no step inconsistent with it. As soon, therefore, as the sovereign power
of the State of Georgia was exercised by an extension of her laws
throughout her limits, and I had received information of the same,
orders were given to withdraw from the State the troops which had been
detailed to prevent intrusion upon the Indian lands within it, and these
orders were executed. The reasons which dictated them shall be frankly
communicated.
The principle recognized in the section last quoted was not for the
first time then avowed. It is conformable to the uniform practice of the
Government before the adoption of the Constitution, and amounts to a
distinct recognition by Congress at that early day of the doctrine that
that instrument had not varied the powers of the Federal Government over
Indian affairs from what they were under the Articles of Confederation.
It is not believed that there is a single instance in the legislation of
the country in which the Indians have been regarded as possessing
political rights independent of the control and authority of the States
within the limits of which they resided. As early as the year 1782 the
Journals of Congress will show that no claim of such a character was
countenanced by that body. In that year the application of a tribe of
Indians residing in South Carolina to have certain tracts of land which
had been reserved for their use in that State secured to them free from
intrusion, and without the right of alienating them even with their own
consent, was brought to the consideration of Congress by a report from
the Secretary of War. The resolution which was adopted on that occasion
is as follows:
_Resolved_, That it be recommended to the legislature of South
Carolina to take such measures for the satisfaction and security of
said tribes as the said legislature in their wisdom may think fit.
Here is no assertion of the right of Congress under the Articles of
Confederation to interfere with the jurisdiction of the States over
Indians within their limits, but rather a negation of it. They refused
to interfere with the subject, and referred it under a general
recommendation back to the State, to be disposed of as her wisdom might
decide.
If in addition to this act and the language of the Articles of
Confederation anything further can be wanting to show the early views of
the Government on the subject, it will be found in the proclamation
issued by Congress in 1783. It contains this language:
The United States in Congress assembled have thought proper to issue
their proclamation, and they do hereby prohibit and forbid all
persons from making settlements on lands inhabited or claimed by
Indians without the limits or jurisdiction of any particular State.
And again:
_Resolved_, That the preceding measures of Congress relative to
Indian affairs shall not be construed to affect the territorial
claims of any of the States or their legislative rights within their
respective limits.
It was not then pretended that the General Government had the power in
their relations with the Indians to control or oppose the internal
polity of the individual States of this Union, and if such was the case
under the Articles of Confederation the only question on the subject
since must arise out of some more enlarged power or authority given to
the General Government by the present Constitution. Does any such exist?
Amongst the enumerated grants of the Constitution that which relates to
this subject is expressed in these words: "Congress shall have power to
regulate commerce with the Indian tribes." In the interpretation of this
power we ought certainly to be guided by what had been the practice of
the Government and the meaning which had been generally attached to the
resolves of the old Congress if the words used to convey it do not
clearly import a different one, as far as it affects the question of
jurisdiction in the individual States. The States ought not to be
divested of any part of their antecedent jurisdiction by implication or
doubtful construction. Tested by this rule it seems to me to be
unquestionable that the jurisdiction of the States is left untouched by
this clause of the Constitution, and that it was designed to give to the
General Government complete control over the trade and intercourse of
those Indians only who were not within the limits of any State.
From a view of the acts referred to and the uniform practice of the
Government it is manifest that until recently it has never been
maintained that the right of jurisdiction by a State over Indians within
its territory was subordinate to the power of the Federal Government.
That doctrine has not been enforced nor even asserted in any of the
States of New England where tribes of Indians have resided, and where a
few of them yet remain. These tribes have been left to the undisturbed
control of the States in which they were found, in conformity with the
view which has been taken of the opinions prevailing up to 1789 and the
clear interpretation of the act of 1802. In the State of New York, where
several tribes have resided, it has been the policy of the Government to
avoid entering into quasi treaty engagements with them, barely
appointing commissioners occasionally on the part of the United States
to facilitate the objects of the State in its negotiations with them.
The Southern States present an exception to this policy. As early as
1784 the settlements within the limits of North Carolina were advanced
farther to the west than the authority of the State to enforce an
obedience of its laws. Others were in a similar condition. The
necessities, therefore, and not the acknowledged principles, of the
Government must have suggested the policy of treating with the Indians
in that quarter as the only practicable mode of conciliating their good
will. The United States at that period had just emerged from a
protracted war for the achievement of their independence. At the moment
of its conclusion many of these tribes, as powerful as they were
ferocious in their mode of warfare, remained in arms, desolating our
frontier settlements. Under these circumstances the first treaties, in
1785 and 1790, with the Cherokees, were concluded by the Government of
the United States, and were evidently sanctioned as measures of
necessity adapted to the character of the Indians and indispensable to
the peace and security of the western frontier. But they can not be
understood as changing the political relations of the Indians to the
States or to the Federal Government. To effect this would have required
the operation of quite a different principle and the intervention of a
tribunal higher than that of the treaty-making power.
To infer from the assent of the Government to this deviation from the
practice which had before governed its intercourse with the Indians, and
the accidental forbearance of the States to assert their right of
jurisdiction over them, that they had surrendered this portion of their
sovereignty, and that its assumption now is usurpation, is conceding too
much to the necessity which dictated those treaties, and doing violence
to the principles of the Government and the rights of the States without
benefiting in the least degree the Indians. The Indians thus situated
can not be regarded in any other light than as members of a foreign
government or of that of the State within whose chartered limits they
reside. If in the former, the ordinary legislation of Congress in
relation to them is not warranted by the Constitution, which was
established for the benefit of our own, not of a foreign people. If in
the latter, then, like other citizens or people resident within the
limits of the States, they are subject to their jurisdiction and
control. To maintain a contrary doctrine and to require the Executive to
enforce it by the employment of a military force would be to place in
his hands a power to make war upon the rights of the States and the
liberties of the country--a power which should be placed in the hands of
no individual.
If, indeed, the Indians are to be regarded as people possessing rights
which they can exercise independently of the States, much error has
arisen in the intercourse of the Government with them. Why is it that
they have been called upon to assist in our wars without the privilege
of exercising their own discretion? If an independent people, they
should as such be consulted and advised with; but they have not been. In
an order which was issued to me from the War Department in September,
1814, this language is employed:
All the friendly Indians should be organized and prepared to
cooperate with your other forces. There appears to be some
dissatisfaction among the Choctaws; their friendship and services
should be secured without delay. The friendly Indians must be fed
and paid, and _made to fight when_ and _where their services may be
required_.
To an independent and foreign people this would seem to be assuming, I
should suppose, rather too lofty a tone--one which the Government would
not have assumed if they had considered them in that light. Again, by
the Constitution the power of declaring war belongs exclusively to
Congress. We have been often engaged in war with the Indian tribes
within our limits, but when have these hostilities been preceded or
accompanied by an act of Congress declaring war against the tribe which
was the object of them? And was the prosecution of such hostilities an
usurpation in each case by the Executive which conducted them of the
constitutional power of Congress? It must have been so, I apprehend, if
these tribes are to be considered as foreign and independent nations.
The steps taken to prevent intrusion upon Indian lands had their origin
with the commencement of our Government, and became the subject of
special legislation in 1802, with the reservations which have been
mentioned in favor of the jurisdiction of the States. With the exception
of South Carolina, who has uniformly regulated the Indians within her
limits without the aid of the General Government, they have been felt
within all the States of the South without being understood to affect
their rights or prevent the exercise of their jurisdiction, whenever
they were in a situation to assume and enforce it. Georgia, though
materially concerned, has on this principle forborne to spread her
legislation farther than the settlements of her own white citizens,
until she has recently perceived within her limits a people claiming to
be capable of self-government, sitting in legislative council,
organizing courts and administering justice. To disarm such an anomalous
invasion of her sovereignty she has declared her determination to
execute her own laws throughout her limits--a step which seems to have
been anticipated by the proclamation of 1783, and which is perfectly
consistent with the nineteenth section of the act of 1802. According to
the language and reasoning of that section, the tribes to the South and
the Southwest are not only "surrounded by settlements of the citizens of
the United States," but are now also "within the ordinary jurisdiction
of the individual States." They became so from the moment the laws of
the State were extended over them, and the same result follows the
similar determination of Alabama and Mississippi. These States have each
a right to claim in behalf of their position now on this question the
same respect which is conceded to the other States of the Union.
Toward this race of people I entertain the kindest feelings, and am not
sensible that the views which I have taken of their true interests are
less favorable to them than those which oppose their emigration to the
West. Years since I stated to them my belief that if the States chose to
extend their laws over them it would not be in the power of the Federal
Government to prevent it. My opinion remains the same, and I can see no
alternative for them but that of their removal to the West or a quiet
submission to the State laws. If they prefer to remove, the United
States agree to defray their expenses, to supply them the means of
transportation and a year's support after they reach their new homes--a
provision too liberal and kind to deserve the stamp of injustice. Either
course promises them peace and happiness, whilst an obstinate
perseverance in the effort to maintain their possessions independent of
the State authority can not fail to render their condition still more
helpless and miserable. Such an effort ought, therefore, to be
discountenanced by all who sincerely sympathize in the fortunes of this
peculiar people, and especially by the political bodies of the Union, as
calculated to disturb the harmony of the two Governments and to endanger
the safety of the many blessings which they enable us to enjoy.
As connected with the subject of this inquiry, I beg leave to refer to
the accompanying letter from the Secretary of War, inclosing the orders
which proceeded from that Department, and a letter from the governor of
Georgia.