Litchfield enquirer., 1830-07-29


fence, 10 suits brought to recover and enforce
theml The 18th section the law of GeaF-
gia makes its murder, to take the life of az In
dian residing within the chartered limits Oc
Georgia, for existing as an esnigtant, &c.
contrary to the laws and customs Of the:
Cherokee nation. Should there be VIOLA
ton Of this section, and it's penalty be exact
ed. which is death, by hanging, what would
be the consequence Turn again to the I'M
tercOurse act, sec. g.: "If any cifizeu or 9th.
CT person shall 60 into any town, settIennentss
&c. belonging to any nation or tribe Of In~'
dams, and shall there commit murder, by kill
ing any Indian, &c. he shall suffer deRth."---
Would the warrant Of execution, issued nm
der the law ofGe0rgia, be justification p
Would this he nm available I" plea in har ?r.-
Itseems to me very clear, thata state law op-
Grating upon the Indian tribes, IN mere bru-
tun, jslMen. It cannot be enforced without
entering upon their territory, and that is pro-
'hibilets tt~
Is this intercourse law, one made in purs,f-
ance of the constitution? Ifit Is, Il Is tho SUI
preme law ofthe land Let me then INQUIRE,
what's the meaning ofthe expression, Conn
rnerce with the Indian tribes? 7" The Su-
preme Court have given an explanation Of this
phrase. They say, I" Commerce undoubted.
" is traffic, hut 1t Is something more; tits IN
tercourse." AS used in the constitution, "ft
is a unit, every part of which is indicated by.
the term. 1t cannot stop at tho external
boundary line of each state, hut may be In
troduced 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 tihina state. The paw--
er of Congress, then, whatever II may be-.
must be exercised within the territorial iusis-
diction Of the several states" What ID This
power! "It'is the power to regulate that
Is, TO prescribe the, rule by which commerce.
Is to he governed. II 10 complete IN itself.
may be exercised TO It's utmost extent, and !
acknowledges no limitations other than are
prescribed inthe constitution II 10 vested Ia
Congress, as absolutely as II would be In a
single government, having In it's constitution
the same restrictions on the exercise Of this
4 power, M are found in the constitution, oethe
United States. Az y implies Ia its nature,
| full power over tho thing to be regulated, IL
excludes, necessarily, the action Of al others
that would perform the same operation on
tho same thing" The power then, given to-
| Congress, is to perscFibe the rule bY irhich
I intercourse with the Indian tribes ell Sd be-
governed, and excludes the action or al 9TH.
ers. Now can a state legislate over a terrific
ry or people, where both these subjects Of
legislation are within the exclusive control Of
Congress, so far as the constitution and ,rca.
ties have given this control? What kind Of
legislation Is that, which Is made ID opeeate
upon y community, with whom the law ma
kers ara not even permitted to have any in
tsrcoursc II seems 40 though Il ives itnpcs-
siblr successfully 10 contend, that tribes Of
Indians could be brought under state laws,
when they IRE without the reach, evet, Of or
binary commerce with the states. @a@
R,A s,sr.,, -. =, ~. a.
Of the subject. The right 10 regulate the inter.
course with the Indian tribes. includes a right
to prohibit it altogether Or to place II under
certain notifications, as the intercourse law
of 1909 does. Now Congress have exercised
the power to prohibit commerce or, inter-
course with foreign nations; they did this
when the embargo and n0n-intercOHrse laws
we're passed, aud we have at present q non.
intercourse law AZ It regards some OF the WI.
India Islands. These laws have been adiudg-
ed valid by the highest judicial tribunal II
the country. Now, IL under the clause which
gives TO Congress- the right to regulate COM
merco with foreign nations, all intercourse
may be prohibited, surely the same thing
may be done. as It relates to commerce with
the, Indian tribes. And power TO prohlbis
all intercoursei s, ex Ui termini, power, which
excludes state legislation; for state law
cannot be executed, where there 10 no lawful
right TO enter into the Ipdian territory TO en-
force 1t. u.s. a.,o2,
But let us examine this clause little fur
ther. 1t 10 very obvious, that the trainers Of,
the constitution, supposed that the Indian
tribes were 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 IN
dian tribes, that 10, with people, not foreign
ers not members of the Union; but distinct
from them, called tribes. They did not pro-
fess to regulate intercourse between citizens
of the same state. II. however,. the states.
by virtue of their sovereignty, can legislate o.
yer the Indians, IL 10 because they are MEM
hers Of their community citizens peEsons
living within their Jurisdiction and thus, the
power given 10 Congress 10 regulate trade
with them, 10 annihilated. They are no long
er tribes; they lose that distinctive character
and appellation, when they are claimed to be
members Ofthe state; aud thus this clause m
the constitution il dead letter; 1t means
nothing.
One observation further on this part Of tks
subject The eQnsent given by the states, IN
the constitution, that Congress shall have the
exclusive power of regulating the trade with
the Indiana. i virtual admission, that they
are not citixens or inhabitants Of the states.
They are not only called tribes, but are treat
ed "A distinct c0nasas,nif;es. NAT izsenrnOrafed