* *

Cherokee nation, within the territorial limits of Georgia. They declared that the right given by European discovery was the exclusive right to purchase, but this right was not founded on a denial of the right of the Indian possessor to sell. Though the right to the soil was claimed to be in the European governments as a necessary consequence of the right of discovery and assumption of territorial jurisdiction, yet that right was only deemed such in reference to the whites; and in respect to the Indians, it was always understood to amount only to the exclusive right of purchasing such lands as the natives were willing to sell. The royal grants and charters asserted a title to the country against Europeans only, and they were considered as blank 384 paper, so far as the rights of the natives were concerned. The English, the French, and the Spaniards were equal competitors for the friendship and the aid of the Indian nations. The crown of England never attempted to interfere with the national affairs of the Indians, further than to keep out the agents of foreign powers, who might seduce them into foreign alliances. The English government purchased the alliance and dependence of the Indian nations by subsidies, and purchased their lands when they were willing to sell, at a price they were willing to take, but they never coerced a surrender of them. The English crown considered them as nations competent to maintain the relations of peace and war, and of governing themselves under her protection. The United States, who succeeded to the rights of the British crown in respect to the Indians, did the same, and no more; and the protection stipulated to be afforded to the Indians, and claimed by them, was understood by all parties as only binding the Indians to the United States as dependent allies. A weak power does not surrender its independence and right to self-government, by associating with a stronger, and receiving its protection. This is the settled doctrine of the law of nations; and the court concluded and adjudged that the Cherokee nation was a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia could not rightfully have any force, and into which the citizens of Georgia had no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The court accordingly considered the acts of Georgia which have been mentioned, to be repugnant to the

Constitution, treaties, and laws of the United States, and consequently that they were, in judgment of law, null and void.

The decision of the Supreme Court of the United States was not the promulgation of any new doctrine; for the several local governments, before and since our Revolution, never regarded the Indian nations within their territorial domains

*as subjects, or members of the body politic, and amenable *385 individually to their jurisdiction. They treated the Indians within their respective territories as free and independent tribes, governed by their own laws and usages, under their own chiefs, and competent to act in a national character, and exercise selfgovernment, and while residing within their own territories, owing no allegiance to the municipal laws of the whites. The judicial decisions in New York and Tennessee, in 1810 and 1823, correspond with those more recently pronounced in the Supreme Court of the Union, and they explicitly recognized this historical fact and declared this doctrine. (a) The original Indian nations were regarded and dealt with as proprietors of the soil which they claimed and occupied, but without the power of alienation, except to the governments which protected them, and had thrown over them and beyond them their assumed paternal dominion. These governments asserted and enforced the exclusive right to extinguish Indian titles to lands, enclosed within the exterior lines of their jurisdictions, by fair purchase, under the sanction of treaties; and they held all individual purchases from the Indians, whether made with them individually or collectively as tribes, to be absolutely null and void. The only power that could lawfully acquire the Indian title was the state, and a government grant

(a) Jackson v. Wood, 7 Johns. 295; Goodell v. Jackson, 20 Ibid. 693; Holland v. Pack, Peck (Tenn.) 151. In 1830, the Supreme Court of Tennessee stated, that the act of North Carolina of 1783, (and which was part of the statute law of Tennessee,) admitted that the Cherokees were an independent people, and not citizens of that state; that they were governed by their own laws, and not subject to the legislature of North Carolina. The court declared that grants from that state of Indian lands were valid as between the state and grantees, but that they were subject to the Indian right and title of exclusive occupancy and enjoyment. Blair & Johnson v. Pathkiller, 2 Yerger, 407. The legislature of New York, so late as 1813, by statute, authorized the governor to hold a treaty or treaties on the part of the people of this state with the Oneida nation of Indians, or any other of the Indian nations or tribes within this state, for the purpose of extinguishing their claim to such part of their lands lying within this state as he might deem proper, for such sums and annuities as might be mutually agreed upon by the parties." Laws of New York, 36th sess. c. 130.

was the only lawful source of title admitted in the courts of justice. The colonial and state governments, and the govern

ment of the United States, uniformly dealt upon these *386 principles with the Indian nations dwelling within their territorial limits. The Indian tribes placed themselves under the protection of the whites, and they were cherished as dependent allies, but subject to such restraints and qualified control in their national capacity as was considered by the whites to be indispensable to their own safety, and requisite to the due discharge of the duty of that protection. (a)

(4.) There has been considerable diversity of opinion and much ingenious speculation, on the claim of right to this country by the Europeans, founded on the title by discovery. We have seen that with respect to the English colonists in America, the claim was modified, and much of its extravagance destroyed, by conceding to the native tribes their political rights and privileges, as dependent allies, and their qualified title to the soil. As far as Indian rights and territories were defined and acknowledged by the whites by treaty, there was no question in the case, for the whites were bound by the moral and national obligations of contract and good faith; and as far as Indian nations had formed themselves into regular organized governments, within reasonable and definite limits necessary for the hunter state, there would seem also to be no ground to deny the absolute nature of their territorial and political rights. But beyond these points our colonial ancestors were not willing to go. They seem to have deemed it to be unreasonable, and a perversion of the duties and design of the human race, to bar the Europeans, with their

(a) In Mitchel ". United States, Peters U. S. 711, 745, 746, the Supreme Court once more declared the same general doctrine, that lands in possession of friendly Indians were always, under the colonial governments, considered as being owned by the tribe or nation, as their common property, by a perpetual right of possession; that the ultimate fee was in the crown or its grantees, subject to this right of possession, and could be granted by the crown upon that condition; that individuals could not purchase Indian lands without license, or under rules prescribed by law; that possession was considered with reference to Indian habits and modes of life, and the huntinggrounds of the tribes were as much, in their actual occupation as the cleared fields of the whites, and this was the tenure of Indian lands by the laws of all the colonies. Grants and sales by the Indians at Indian treaties, under the sanction of the local governments, gave a valid title. The doctrine was in that case applied to grants of lands in Florida, from the Creek and Seminole Indians, under the sanction of the Spanish

authorities.

implements of husbandry and the arts, with their laws, their learning, their liberty, and their religion, from all entrance into this mighty continent, lest they might trespass upon some part of the interminable forests, deserts, and hunting-grounds of an uncivilized, erratic, and savage race of men. Nor could they be brought to entertain much respect for the loose and attenuated claim of such occupants, to the exclusive use of a country evidently fitted and intended by Providence to be subdued and cultivated, and to become the residence of civilized nations.

*

It was part of the original destiny and duty of the human race to subdue the earth, and till the ground whence *387 they were taken. The white race of men, as Governor Pownall observed, have been "land-workers from the beginning"; and if unsettled and sparsely scattered tribes of hunters and fishermen show no disposition or capacity to emerge from the savage to the agricultural and civilized state of man, their right to keep some of the fairest portions of the earth a mere wilderness, filled with wild beasts, for the sake of hunting, becomes utterly inconsistent with the civilization and moral improvement of mankind. Vattel did not place much value on the territorial rights of erratic races of people, who sparsely inhabited immense regions, and suffered them to remain a wilderness, because their occupation. was war, and their subsistence drawn chiefly from the forest. He observed that the cultivation of the soil was an obligation imposed by nature upon mankind, and that the human race could not well subsist, or greatly multiply, if rude tribes, which had not advanced from the hunter state, were entitled to claim and retain all the boundless regions through which they might wander. If such a people will usurp more territory than they can subdue and cultivate, they have no right to complain, if a nation of cultivators put in a claim for a part, and confines the natives within narrower limits. He alluded to the establishment of the French and English colonies in North America as being, in his opinion, entirely lawful; and he extolled the moderation of William Penn, and of the first settlers in New England, who are understood to have fairly purchased of the natives, from time to time, the lands they wished to colonize. (a)

The original English emigrants came to this country with no

VOL. III.

(a) Droit des Gens, c. 1, sec. 81, 209.

42

* 388

slight confidence in the solidity of such doctrines, and in their right to possess, subdue, and cultivate the American wilderness, as being, by the law of nature and the gift of Providence, open and common to the first occupants in the * character of cultivators of the earth. The great patent of New England, which was the foundation of the subsequent titles and subordi nate charters in that country, and the opinions of grave and learned men, tended to confirm that confidence. According to Chalmers, the practice of the European world had constituted a law of nations which sternly disregarded the possession of the aborigines, because they had not been admitted into the society of nations. (a)

(a) Chalmers's Political Annals, 676. The Puritans circulated a paper in England, immediately preceding their projected emigration to Massachusetts Bay, entitled General Considerations for the Plantation of New England. Mather's Magnalia, vol. i. 65, edit. 1820. It was published at large in Hutchinson's State Papers, (Boston, 1769, p. 27,) and it declared that "the whole earth was the Lord's garden, and he had given it to the sons of Adam, to be tilled and improved by them. Why, then, should any stand starving for places of habitation, and in the mean time suffer whole countries, as profitable for the use of man, to lie waste without any improvement?" In answer to the objection that they had no warrant for taking land a long time possessed by other sons of Adam, it was stated, that what "was common to all was proper to none. This savage people ruleth over many lands without title or property, for they enclose no ground, neither have they cattle to maintain it. There was more than enough for them and us. By a miraculous plague a great part of the country was left void of inhabitants. Finally, they would come in with good leave of the natives." We may also refer to an able paper, written by the Rev. Mr. Bulkley, of Colchester, in Connecticut, in 1724, entitled, "An Inquiry into the Right of the Aboriginal Natives to the Lands in America, and the Titles derived from them." Massachusetts Historical Collections, vol. iv. 159. In that treatise the learned author confines Indian titles, which have any solidity or value, to those particular parcels of land which they had subdued and improved; and insists that the English had an undoubted right to enter, and appropriate, for agricultural purposes, all the residue of the waste and unimproved lands in the country, as being common, and open to the first bona fide occupants. He contended, that in a state of nature, the only title to property was the labor by which the same was appropriated and cultivated, and that the Indian tribes were still in that imperfect state of civil policy which borders upon a state of nature; and the extensive tracts of country which they claimed as national property were not subject to any regulation, nor defined as property, and lay neglected in that common state wherein nature had left it. Cotton Mather, also, in his Magnalia Christi Americana, (vol. i. 72,) considered it as an instance of the most imaginable civility, that the English purchased several tracts of land of the natives, notwithstanding the patent which they had for the country. The great patent of New England, granted by King James, in 1620, to the council at Plymouth, in England, (and which was by the pa tent incorporated by the name of "The Council established at Plymouth, in the county of Devon, for the planting, ruling, and governing of New England in America,”) recited, that the king's subjects had "taken actual possession of the continent mentioned in the patent, in the name and to the use of the king, as sovereign lord thereof;