Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1832-04-13
DOMESTIC.
AN EXAMINATION OF THE CHEROKEE
QUESTION Il Concluded


QUESTION: Concluded.)
Upon the dissolution of the Confederation and the esab
shmentof the present constitutions of the first obe
Oh me new government was to concatc sublue the
Indian tribes The whole inland frontier from ,he Lakes
othe St Mary's, exposed to their ncursions and
depredations and crisis had evidently arrived demanding
.e most vigorous measures Many of the tribes in
open hosies, and the power OF the Union could alone
successfully contend with them. To provide for the
common welfare was OF the great Objects for the
compiShment which the government was ins,u-
ted In the execution of this paramount duty imporant
relations necessarily between them and the Indians
Hosulues were continued commenced, and il was not
unu the decisive victory OF General Wayne in 1894 that
ne power oil the savages was broken, and the common
defence secured AS necessary incident 10 the power
oil deence is the right TO make peace bringing into ac
ton the treaty-makng authority and special jurisdiction
over all matters fairly connected herewith far rs they
are actually required Tor the purposes safety aud as long
as the General Government is responsible for that safety
tha Is TIL the various tribes reduced in strength or
so mprovedin morals and habits that the respective States
may safely assume jurisdiction them without calling
upon Congress to provide the Defence When
the posse eomitatus may be substituted for military
ioce and when citizens ventung oengage in hostie
will become traitors.
This is the only real and visible foundation upon which
the power oil the General Government conclude trca
ty with any Indian tribe living within the boundaries of
state can rest Except so far as the process may be
thought expedlent in the purchase of their possessory
right by the United States, have the ultimate domain
and, consequently, the right make necdf rules and
regulations respecting it And also, in the "regulaion
oil commerce. with the Indians if it necessary and pro-
per that this regulation should be made by ventiona
arrangements. And, in either case the extent of the
power must be limited by the objects be attained Nci
Their of these have any come xon with civil or criminal
jurisdiction, and therefore neither confer il upon the
Indians, if they have not nor take il from the States
il il is vested in them.
we must, however, carefully separate the treaty making
power from the power "to regulate commerce with the
Indian Tribes The former given 10 the President and
senate, and the latter belongs TO Congress The auhori-
w. therefore, TO make treaties with the Indian tribes what
ever us may be, derives no support from the power TO
"regulate commerce., but exists independently of it,
~
boundanes oil the respective States and within the boun
dares of the Republic, the United States have general
jurisdiction over the Indian tribes, necessary attribute
OF sovereignty and in conformity with acknow lodged
principles of the laws of nations.
Cencedng now what however is required, that I'M
the CONSTITUTIONS and for the purposes of defence and
security, the general government has control over the
Indians that control must of be limited bv lust
construction OF the grant OF power and by the duties OF
the government Ii is not essential its existence or ex
ercse that should include every attribue OF sovereign
ty and will cease when danger is longer be APP
pretended and when the ordinary civil power of the
nuny is sufficient TO govern and restrain the Indians
And the States must necessarily judge when this period
has arrived when the relative strength of the parties
ana the circumstances and the Indians
der such measure proper The portion OF Jurisdiction
ill that time entrusted TO the GeRep e ZEN To- ms ,raa
authorities.
This gradual change has taken place in almost all the
original States. And the principles, connected with il,
are not only obviously just and such will alone recon
cie the difficulties of the subject, but are supported bv
respectable authorities.
"Wedo not mean to say, observes the Supreme Court
OF New York, ha the condition of the Indian tribes at
former and periods has been that of subjects or
citizens OF this State. Their condition has been gradual
y changing until they have lost every attribute of sover
eighty and become entirely dependent upon and subject
10, gov ernment."
At the time this opinion was delivered there were pro
badly G00O Indians in New York How many there
were at the termination OF the 'fomer and remote peri
DDS when they retained their quasi Independence there
materials at hand for aSccrainng No doubt the
number then double. But the strength of The tribes
constitutes only of the clements for tie determination
ntt Tho uun<f tnpn It 4 Al. IL.
each State has Judged and must Judge.
The condition of the Indians says the Able Rayna
has not always been the Al first they were sciZ
ed sold in the markets and made 10 work like slaves upon
the plantations"
SIN of the old Sates," says Mr.. Justice Mclean
Massachusetts, Connecticut, Rhode Island and others
where small remnants of tribes remain, surrounded by
white population, and who by their reduced numbers had
lost the power OF selgovemmont the laws of the State
have been extended Them for the protection of their
persons and property"
1t is obvious, that the limitation of The power of self
government here alluded TO, must depend upon the opin
ion OF the State and upon numbers merely: for num-
bers not essential 10 self governments and we NAV add
are unmporan except far relates TO their necessary
defence And it is equally obvious, that the argument
tm d6 inconCenenh cannot operate 10 diyes from the
General Government and confer upon any the States
authority given 10 the former and particularly when
authority II necessary, may be as well exercised by the
one, as by the other IT, under the constitutions the u.
States alone have jurisdiction these tribes and it, in
consequence of reduced numbers other circumstances
the tribes become unable TO exercise that norton Of urs
dicon entrusted TO them is for the United States TO pro-
vide remedy, and not for third party, who upon the
principles assumed have coded all Legitimate authority
the persons and objects Certainly claim Of State
jurisdiction can rest upon this foundation.
1t may be observed, that with the extinction of that
portion OF jurisdiction, arising fhe duty general de-
fence, will also terminate the power of regulating com
merce. That power it will he recoeced is to regulate
commerce with the Indian tribes and not with the Indians
they Will then cease TO be lrbes to take the deni
uoD instead oil the term, will TO be- in The language
OF the American photographer ga body of rude people
united under one leader government; the tribes of the
Six Nations the Seneca tribe, in America and will be-
come citizens, with such privileges and disabilities the
laws OF the respective States may provide"
Having endeavored 10 shew the general nature of the
jurisdiction The Indian tribes, and that in the United
States that jurisdiction belongs to the several State govern
ments whatsoever and howsoever they may choose 10
exercise IT, IT is necessary TO enquire how far the
crcse OF this right by the State OF Georgia is controlled
prohibited by any Conventional arrangements made with
the Cherokee Indians If the General Government have
entered into engagements inconsistent with this right and
IL such engagements within the scope of its lend.
mate authority, nothing remains but 10 regret these stipu
aiions and to execute en even if they perpetuate the
Inconvenience which must attend the permanent cslaL-
shment oil the Indians ia their present places residence
IL, the other hand the United States have contracted
Obligations which they cannot fulfil without violation OF
preceding and paramount duties, they must then cOmpen-
safe the Indians, who the injured party, 10 their full
satisfaction, unless their demand is upon the face Of it,
should be measured by the party thus involved in contra
dicory obligations in spirit OF hberay, and rendered
with full explanation OF the circumstances We think
however il will be found, that neither of these alterna
Indians may be executed fairly and in good faith and con.
sisteny with the jursdctiona authority OF the State oil
Georgia
The extension ofhe laws of the respective States over
the Indians, involves their personal and political rights.
The former under any state of things will no doubt be a-
N aufa