Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1830-05-12


But if we must prove, what has never
before been denied-what has always
been admitted-admitted in theory, and
in practice admitted-namely, that the
Indian nations within our territorial boun-
daries are competent to make treaties
how is that competency to be made out
| agree that an Indian nation, to be
competent to make a treaty, must be a
sovereignty for that treaties, properly
so called, can only be made by sove-
reigns with sovereigns; but for this pur-
pose it is not material whether the sove-
reignty be dependent or independent;
sovereingty is all that is necessary to this
competency. The honorable gentleman
from Alabama (Mr. M'Kinley) said the
sovereigns must be equal; but he will
find no authority for that opinion, if by
equal, he meant any thing more than that
both must be sovereign. A depend
ent sovereignty is still sovereignty, and
competent to make treaty. under
stood this to be admitted by the hon
orable gentleman from Georgia, in the
outset of his argument; though l could
not reconcile the subsequent part of his
argument with this admission.
Now what is sovereignty 1t is to be
SUI j'1s; s;-that is, to be subject, within
itself, to no law but the law Of its own
making; externally it may be subject to
another jurisdiction, and then it is de-
pendent sovereignty-to what degree de-
pendent, will depend upon the treaty or
treaties by which it is made dependent,
if so made by treaty. Now this is the
condition Of every Indian nation in our
country, SUI .juris, and therefore sover-
eigns; but subject externally to another
jurisdiction, and therefore a dependent
sovereign. This has always been their
condition since they ceased to be inde-
pendent sovereignties. Since they ceased
to be Independent sovereignties, there
never has been time when this was not
their condition. When, or where, l
would ask, has any Indian nation been
subject within itself to the law of another
jurisdiction know of none l have
heard Of none. If there be one, that
one would be an exception from the rest,
but would not effect the right of the rest:
that one may have relinquished its right
to be sui juis; and then it would not be
regarded as an exception.
Now the fact ofbeing sui juris, and al
ways of having been so, constitutes the
right to be so. l would be glad to know
if any nation has, or ever had, a better
title to be jTi sui ju,is than the fact Of be-
ing so, and of always having been 50,
than a present possession, fortified by
a prescription that knows no begin
ming; that runs back as far as memory
or tradition goes, and beyond to where
it is lost in that oblivion in which un-
known times and their memorials are all
buried and lost? And such is the title of
every Indian nation now in fact sm ju-
rus, to be, and remain SUI .juris. There
never was, there never can be, any bet
ter title to the right of being SUI .juris.-
TO the validity of such title, its ac-
acknowledgement by other sovereignties
is not necessary but if it were, there
never has been time in which it was
not acknowledged by other sovereign
ties, or 'Sas denied by any other; but it
is not necessary, for a right in present
possession, fortified and sanctiied by
such prescription as this is, stands on
higher ground, much higher, than any
acknowledgement by other sovereign
ties could place it. Unquestionably
then these nations are SUI .j,t,-is, of right
sm juris; therefore sovereign, therefore
competent to make treaties.
A multitude of matters have been urged
upon our consideration on the other side,
not to disprove the fact of the Indian ma
tons being at this moment sui juuis, nor
the fact that they always have been SUI
jm1s; for these can neither be disproved
nor denied; but to prove that though they
are SUI .juris de .tacto, that they are not
SUI juis de .jure; not being aware, as it
appears to me, that the fact constitutes
the right.
1t is said, for instance, that the crown
of Great Britain claimed right to this
country by the right of discovery that
what was the right of the crown, is now
our right, and therefore that the Indian
nations are not SUI juris de jure.
Now what was the right as claimed by
discovery q make no question of that
right, for the time has gone by for max
ing that question, except as moralist or
historian. Whatever was the defect Of
that right originally time now has suppli-
ed that defect, as ia, as defect of right
can be supplied by lapse of time But
what was that right as claimed by dis
covcry? 1t was this: a right to the do
main ofthe country, subject to the right
OF occupancy by the Indian nations; and
that occupancy to be without restriction
as to mode, and without limitation as to
time; with the right of alienation of their
possessory title, restricted to the proprie-
TOR Of the domain This was tha eIa;r,