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the provisions of which are set out in the bill. In 1788, congress by proclamation, declared their determination to protect the Cherokees, and if necessary to use force for that purposc. (Journals, Ist September, 1788.) In 1787 the attention of congress had been forcibly and particularly drawn to the subject of their own power. The states of Georgia and North Carolina had raised a question about the construction of the articles of confederation (which were not in this respect altogether free from obscurity); and Georgia had actually proceeded to treat with the Creeks. The matter was referred to a committee, consisting of a member from Massachusetts, New York, Pennsylvania, Delaware and Virginia. They made a report (12 Journals, 82) on the 3d August, 1787; in which the question was fully examined, and the power of congress asserted and maintained. The clause in the articles of confederation, upon which the doubt had been raised, was as follows, "congress shall have the sole and exclusive right and power of regulating the trade and managing all affairs of the Indians, not members of any of the states; provided that the legislative right of any State within its own limits be not infringed or violated." Upon this proviso, the pretensions of the states were founded. Whatever may have been the merits of this controversy, it was for ever ended by the constitution of the United States, which omitted the limitations in the articles of confederation, and gave the power to congress unfettered, and (to use the language of the report before mentioned) "indivisible." That this was purposely and deliberately done, we have the authority of Mr. Madison in the Federalist, No. 42. So that by the constitution of the United States, all Indian nations, within or without the limits of states, are put upon one footing,-that asserted by the report of the committee of congress. No state has any power over

them; it would be inconsistent with the power of congress.

In what light, then, must this constitution be considered. as regarding the Indian hations? After the reference which has just been made, the answer is plain and unavoidable. In adopting, without exception, treaties previously made, it adopted the treaty of Hopewell, which was one of them, and immediately in view. In conferring upon the president and senate the treaty-making power, it gave to them the powers which had been exercised by congress under the same terms in the articles of confederation, including that of making treaties with the Indians. In giving to congress the power to regulate trade with the Indians, it gave to them all the power which had been exercised by congress before, freed from the embarrasment of the obscure proviso which had caused some question, and therefore, if not enlarged, at least rendered more firm and indisputable. It plainly, purposely, and unequivocally assigned to the federal jurisdiction, in its different departments, the whole subject of the Indian nations, as one which belonged exclusively to the union, and not to the states; employing for this object, in substance, the clauses in the articles of confederation which had been found efficacious before, and rejecting only such as had been the occasion of doubt or embarrasment. As to the nations themselves, it regarded them as they had heen regarded before, as states, not of this union, and therefore foreign, and capable of making treaties with the United States. Whoever will examine the report before adverted to, will be fully satisfied that these were the views of the public men of that day, and that they were entertained upon the strongest and the soundest reasons. Occurrences of the present day give to them additional strength.

Under the constitution, the subject again received a deliberate, and peculiarly solemn examination; chiefly as to the expediency of the mode of proceeding; for the power was not questioned. In the year 1790 (August 11), President Washington sent to the senate a message in relation to the Cherokee Indians, which concluded with asking the advice of the senate upon three questions. The first of them was whether overtures should be made for arranging a new boundary by treaty with the Cherokees. The second related to the mode of compensating them for the land they might cede. The third was as follows: "shall the United States stipulate solemnly to guaranty the new boundary which may be arranged?" The senate resolved to advise and consent that the president should at his discretion cause the treaty of Hopewell to be carried into execution, according to the terms thereof, or enter into arrangements for a new boundary, compensating the Cherokees for the lands they might cede. In answer to the third inquiry, the senate came to the following resolution. Resolved, in case a new or other boundary than that stipulated by the treaty of Hopewell shall be concluded with the Cherokee Indians, that the senate do advise and consent solemnly to guaranty the same." Under this deliberate expression of the advice and consent of the senate, the treaty of Holston was made on the 2d July, 1791; and was duly submitted to and approved by the senate. It is still in full force, as a treaty between the United States on the one part and the Cherokee nation of Indians on the other; with the solemn guarantee on the part of the United States which the senate had advised. Eleven treaties have since been made, the last of them in the year 1819, adopting and continuing the same guarantee. As to the state and condition of the Cherokees, they are all of them perfectly clear, and especially the treaties of 1817 and 1819.

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The existence of the Cherokee nation of Indians, as a state, and a foreign state, is thus brought down to the present moment. The evidence of the public acts of the United States is conclusive. It is impossible to question the authority to make these treaties. The constitution plainly intended to give the power to make them. This is no constructive power, implied from doubtful clauses, or inferred from other powers or from general words. The very case was within the view of the statesmen who framed that instrument. They adopted the provisions in the articles of confederation which had confessedly given the power, and omitted the one which had thrown a doubt upon it, for the very purpose of cutting off all dispute or question. It is not, therefore, a construction supported merely, or even principally, by a practice of forty years without question; though such a practice, concurred in by all the departments of the government, must even be deemed a venerable authority. The history of the constitution, the language of the constitution interpreted by its history, the known intention of those who framed it; fully justify the assertion, that this power could never, at any period, have been questioned, without doing flagrant violence to the known and manifest meaning of that instrument. There is not a power of the federal government more certainly conferred than this.

These, then, are treaties made in pursuance of the constitution. They are in full force. They stand in the statute book, with all the sanctions of treaties with foreign states; and we are in the possession and enjoyment of the benefits derived from them. Can we under these circumstances deny that which they necessarily import? Can we, consistently with any right rule of interpretation, or with the common obligations of good faith, call in question the character of the party, announced and admitted upon the face of the instrument itself, especially

when by so doing we impair or take away from him the stipulated advantages of his compact. If it were morally or politically admissible, is it judicially possible, while the government acknowledges, as it continues to do, the existence and binding obligation of these treaties?* Can any court deny to them their natural construction?

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The articles of agreement and cession between the United States and the state of Georgia, of the 24th of April 1802, are equally conclusive upon the point in question, by the concession of Georgia herself. The United States stipulate to extinguish the Indian title to lands within the state of Georgia, for the use of Georgia, soon as the same can be peaceably obtained upon reasonable terms." There is an admission here that there was an Indian title; that it could only be extinguished with the consent of the Indian nation; and that the United States alone had the power to extinguish it, because the United States alone had the power to make treaties with the Indians. The act of congress of 30th of March, 1802, commonly called the Indian Intercourse act, speaks the same language in all its provisions. That act was made in fulfillment of the obligations of justice contracted by treaties. It was nothing more than had been solemnly guarantied. The United States were bound to make such laws, and they are bound to execute them: a failure in either would be a violation of the national faith so clearly pledged. They are bound to respect the Indian boundaries and rights themselves-they are bound to protect them from encroachments by states, or by citizens of the United States; because they have en

* The act of the last session expressly declares, in a proviso, that they are not to be impaired or questioned.

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