Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1832-04-10

To the question here put. we answer. no. II such
provision can be found in the Constitution will agree
to abandon the whole argument There is, indeed pro-
vision Tor regulating commerce with the Indian tribes,
but we need scarcely 10 shew, that between commerce
and Intercourse, there is wide difference. Fartoo wide
TO render them convertible in the myes.iga OF
the delicate question OF conflicting jurisdiction Tospe"k
logically the former is species aud the latter genus
One existing at all times, in greater less degree, both
in peace and the other, like the spirit of laws be-
comes silent amid Intercourse includes commerce.
hut it includes also many other relations political aud per-
sonal, OF which commerce forms part.
Tie Chcf Justice alSo remarks, that "he whole inter
course between the United States and this nation, Qhe
Chcrokoes is, by constitution aud laws vested in the
government Of tho United States. They, speaking of
the Acts vi Georgia. ntcrere orcbly with the relations
established between the United States and the Cherokee
nation The regulation of which, according TO the settled
principles OF our constitutions is committed exclusively 10
the government OF the United States"
This as il appears TO US, is assuming the very point up
ON which the controversy turns. We can hnd III the
constitution clause giving United States the right
to regulate the intercourse relations with the Indian
tribes We ask for that clause 1t is not be found We
then ask Tor the fair deduction OF that power from
press grant, and we met by the opinion that the eNcu
svc control OF The iRtecOs and relations with the ln
dtans, Is given 10 the general government.
III ths opinion is founded upon belief, that Intercourse
aud relations and commerce SYNONYMOUS, the
cluSien would still involve in neXrcabe difficulties
This regulations OF commerce intercourse il it give the
United States "eXclusivc jurisdiction the Indians,
gives as we have sa exclusive jurisdiction all for
eign nations, and over the whole American people We
surely need not pursue this subject farther.
W ere such an enquiry useful, it would not be difficult
10 shew that there were very sufficient for grant
ing to The general government this power regulate
SERGE, arising out of the situation of the various tibes
some oil them Extending into several States, and all of them
powerfully affected by the influence OF the traders and by
the supplies rendered necessary their comfort sub
stchce-but II Is an investigation, into which need
not enter
5. The power of Congress to declare war; and the pow
10 make peace furnish the only remaining authority by
virtue OF which this jurisdiction be assumed and
crciscd
As has ever been declared by Congress against
he all
have been prosecuted by Executive authority it is un-
necessary present to embarass the discussion with any
observations upon the warmaking power
The eaty-nakng power includes within ii the power
TO make peace II Is vested by the Constitution in the
President and Senate
Treaties in national law, are compacts made between So
Vereigns In mOnarchca governments, the power TO
conclude them is generally branch the royal preroca-
1--WE; Is so in England. No treaty, in this acccptaion
OF the term, negotiated with an Indian tribe v
ing under the dominion OF the English crown. No Min
listers were ever appointed TO conduct such negotiations
10 instrument submitted for the soveregns an
probation, nor were any notifications ever exchanged
All these proceedings are essential TO the constitution OF
treaty, without which, according TO modern practice no
compact can assume that high character, be construed
to be recognition OF mutual Independence And even if
they waived still the EXPRESS assent of the sove
reign is inds peusabe.
1t clear, from what has been before stated that as we
recede from the period of the discovery, the practice if
not the doctrine the Europeans i'm their intercourse
with the Indians becomes melioracd and humanity as
serS her claims iii favor OF the latter At first, all rights
o persons and property and jurisdiction dsegared
were Investigated and acknowledged, and the civilized go
yernments found that much land should be assigned to
the primitive people necessary for their comfortable
subsistence and that the jurisdiction TO be exercised
should depend upon their situation, disposition, other
circumstances.
In the Spanish Laws of the Indies it is provided that
he Indians shall be left the possession their lands
hereditaments and pastures, in such that they
shall stand in need of the necessares of life and shall
be allowed all the aid and facilities the sustenance of
their household and families"
Massachusetts in 1923, declared ha''the Indians had
tilp lsstr io in fharl
and cuiiudtcd.''
In 1867, the governments of Massachusetts, and Con-
neccut desired by the Commissioners of the United
Colonies, o take that the Pequots be
with lands convenient for their subsistence without pre-
ludice TO the English plantations"
And Virginia, in 1913, provided, 'hat for the future
no lands should be patented, until fifty had first
set part TO each warrior, or head of family, belonging
To any tribe OF indians in the neighborhOod.'
These historical steps in the progress of this affair
and shcw that early day il became evident some
check should he nterposed prevent the universal sci
of land Not because the Government had no power
to acquire it, but because they deemed il expedient
that their citizens should be restrained within Just limits
well prevent fraud force and the eventual dsatis-
faction OF the Indians as the necessity in the words OF
an ancient statute OF Virginia, "of aoltng them new
lands and possessions"
IL, therefore, became practice with the Colonial Co.
TO Councils 10 be held with the Indians
at which cessons were, from time time made, the ar
an%ementS, cntcrcdi into at these Councils designated
,S "Heates." They very economically conducted
Until 1922, the expense OF 'trcaies and other Indian
airs in Pennsy vania was limited by law to fifty pounds
,Iuded by Penn with the Indians in 1888, 9l36 Os
I'D In conformity with this, is the remark Frank
lin iti1 much cheaper to purchase of them than take
and maintain the possession by force for they gencr-
ally very reasonable in their demands for lands
Another consideration led 10 this mode of acquisition
In the long contest between the French and British for
superiority upon this Continent the services the Indians
were found useful TO both parties; and each DESTROYS
Of securing their friendship and alliance. In eccing this
1t became necessary 10 many of complaint;
among which none more powerful, than the facility |
with which Indian lands claimed and occupied.
Such the state OF things at the period of the Revo-
luton The struggling cOloiss found themselves enga-
gcd in desperate conflict, which required the united
wisdom, strength and resources OF all The British called
the Indians TO their aid; and TO their character and
they upon the To resist both
was common object, and TO the alliance, was the
obvious dcddte OF prudence. IIosics were therefore
prosecuted negotiations conducted and conventional ar
made with them, by the central government
But all this was done matter OF necessary defence,
and not y virtue OF any sovereign rights the Indians;
Tor these rights expressly eryed in the Articles of
confederation, which declare "that Congress shall have
the sole and exclusive right of regulating the trade and
managing all the adirs with the Indians not members of
any OF the STATES Provided, that the legislative power
OF any STATE Withnits own limits he innged vo-
latcd.' 1Remoiuder i'm 0ur Derf1 o
Eyvcssay-sccOmtl Comprehension 4.
IN SENATE.