Alabama state intelligencer., 1831-11-26
A. 8. CLAYTON.
Mc,r. Enrk. Oct IA 1s2l

| 4Nttc- fOfh, Off. Is, 1851. | DEAR SIR-I was favored yesterday with your let ter of the Sd inst together with the Southern Recor. der ot Sept 29th. containing your opinion in tho | case oi the Stdto ot Georgid vs. CanGtoo. | That opinion has been read by me with great care and attention and agreeably to your request suh- Ioin the conclusions, to which my own mind has ar- rived, Tn answer to the two material points in the case
 l. It appears to me, that upon the whole, the sta tute applies to the 1 can only judge from the extracts from it contained in your opinion. The statute asserts that the mines alluded to- are of rig Me property of Georga, and t GutkOrises he Gorer- nor to luke posseSSi0n Of those mines and 10 emp0u torce to protect them from all further trespass pre- sume such forclble possession has been taken and that the offence alleged against tho Cherokee Indian arose subsequently,. But the statute is exception able, In reference to the rights of thc Cherokees 10 their lands, (and which include the mines therein, as well as the trees and herbHge and stones thereon under the existing treaties with them, and in refer ence to the constitution and constitutional authority ol the United States, that agree with you, that such statute should receive lnterpre 1 possible favorable 10 constitutional and treaty rights. If such statute does not apply, iR Uory terms, to the very case Of Cherokee Indian digging in the mines, the benign intendment would be that the Legislature did nor htend ii, because such an intention would con ravene the clear rights of the Cherokees to the un- disturbed use and enjoyment of the lands within tnetr territory, secured to them by treaty.
 Z bnt the better way IS not to rest upon any such construction but to go at once as you have done to the great and grave question, which assumes the statute to have intended 10 deprive the Cherokces without their consent and without purchase of the use and enjoyment in part at least of their lands cured to them by national treaties, and which calls into discussion the constitutional validity of the stat ute.
 On this point am entirely with you, and in my opinion your argument is sound and conclusive, and you have examined the subject with candor and ac- curacy. and with the freedom of judgement which your character and station dictate
 am almost entirely persuaded that tl4e Cherokee title to the sole use and undisturbed enjoyment of their mines, is as entire and perfect any part of their lands. or as to any of them whatever. The occupdncy in perpetuy to them and their posterity, belongs to them of right, and the State of Georgia mas no other right Tn respect to the Indian pr0perty Tn their lands, than the right of preemption by Jair purchase, no other interest in the lands property, belongs to the Slate and to take possession of the mines by force, Is substituting violence for law and the obligations oireaty contract. ltappears to be altogether without any foundation to apply the com mon law doctrine of waSte to the case, and can not but think that the Legislature of Georgia would not nave passed the stalute if they had duly consid cred that the Indian lands have never been claimed, or the occupancy of them, in the most free and ab- solute manner by the Indians, questioned, either by the royal governments before the American revolu- ton, or by the Union, or by any state since, except in open wars, or except the claim was founded upon fair purchase from the Indians themselves. The proceeding of Georgia in this case san anomaly and
 think thnrs the credit of free and popular govern ments and the moral character of our country and IS in direct violation of the constitutional authority of the United States, as manifested by treaties and by statute. cannot think, that the high-sprited free and noble race ofmen, who compose the citizens of Georgia would be willing on reconsideration to do any such thing. Yours, respectfully.
 JAMES KENT.
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