"That there is too much reason to apprehend that administration [that is, the British government,] will spare no means to excite the several nations of Indians to take up arms against these colonies; and that it becomes us to be very active and vigilant in exerting every prudent means to strengthen and confirm the friendly disposition towards these colonies, which has long prevailed among the northern tribes, and which has lately been manifested by some of those to the southward."

"That the commissioners have power to treat with the Indians, in their respective departments, in the name and on behalf of the united colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."

In Congress, July 13, 1775," Ordered, That a talk be prepared for the Indian nations, so as to suit the Indians in the several departments."

In Congress, Sept. 14, 1775, “The commissioners for Indian affairs, in the nothern department, transmitted to the congress the minutes of a treaty, held with the Six Nations, at Albany, in August."

In Congress, Feb. 5, 1776, Resolved, That a friendly commerce between the people of the united colonies and the Indians, and the propagation of the gospel, and the cultivation of the civil arts among the latter, may produce many and inestimable advantages to both: and that the commissioners for Indian affairs be desired to consider of proper places, in their respective departments, for the residence of ministers and schoolmasters, and report the same to Congress."

In Congress, March 8, 1776, " Resolved, That Indians be not employed as soldiers in the armies of the united colonies, before the tribes to which they belong shall, in a national council, held in the customary manner, have consented thereunto, nor then, without express approbation of Congress."

In Congress, April 10, 1776, "Resolved, That the commissioners for Indian affairs in the middle department, or any one of them, be desired to employ, for reasonable salaries, a minister of the gospel, to reside among the Delaware Indians, and instruct them in the Christian religion; a schoolmaster to teach their youth reading, writing, and arithmetic; also a blacksmith to do the work of the Indians in the middle department."

In Congress, May, 11, 1776," Resolved, That the standing committee for Indian affairs be directed to take measures for carrying into execution the resolution of the 6th, for holding a treaty with the Indians in the different departments, as soon as practicable."

In Congress, May 27, 1776, " Resolved, That the standing committee for Indian affairs, be directed to prepare a speech to be delivered to the Indians, and to procure such articles as they judge proper for a present."

In Congress, Sept. 19, 1776, "Resolved, That it be recommended to the inhabitants of the frontiers, and to the officers at all the posts there, to treat the Indians who behave peaceably and inoffensively, with kindness and civility, and not to suffer them to be ill used or insulted."

"As it may be a means of conciliating the friendship of the Canadian Indians, or at least of preventing hostilities from them, in some measure to assist the President of Dartmouth college, in New Hampshire, in maintaining their youth, who are now there under his tuition, and whom the revenues of the college are not, at this time, sufficient to support; that for this purpose, five hundred dollars be paid to the Rev. Dr. Eleazar Wheelock, President of the said college." In Congress, Oct. 20, 1777, "Resolved, That it be earnestly recommended to the president and assembly of the State of Georgia, to use their utmost exertions to cultivate peace and harmony with the Indian nations; and to enable them to effect this salutary purpose, that they forthwith enact laws, inflicting severe penalties on such of their inhabitants as may endeavour to provoke a war, which may endanger the state of Georgia, and entail great injury and expense on the United States."

In Congress, Feb. 2, 1778, " Resolved, That the commissioners speak and act in such manner as they shall think most likely to obtain the friendship, or at least, the neutrality of the Indians, and that Congress will support the commissioners in any measures they shall conceive best calculated to answer these ends." In Congress, May 17, 1779, "Resolved, That the commissioners for Indian affairs in the northern department, be directed to consult General Washington

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upon all treaties with the Indians, and to govern themselves by such instructions, as he shall give them, relative to any partial or general treaty of peace to be concluded with them." [It would seem that the Old Congress was so simple as really to believe, that General Washington had understanding sufficient to enable him to decide what was a treaty and what was not.]

In Congress, Feb. 21, 1780, "Resolved, That the commissioners of Indian affairs in the northern department, be authorized and instructed to take such securities from the hostile tribes of Indians, to ensure the faithful performance of their engagements with the said commissioners, as seem most conducive to the end proposed, in lieu of hostages."

In Congress, Oct. 15, 1783,"Resolved, That a convention be held with the Indians residing in the northern and middle departments, who have taken up arms against the United States, for the purposes of receiving them into the favour and protection of the United States, and of establishing boundary lines of property, for separating and dividing the settlements of the citizens from the Indian villages and hunting grounds, and thereby extinguishing, as far as possible, all occasion for future animosities, disquiet, and contention."

In Congress, July 15, 1788, "Whereas it is represented to congress, by the delegates of the State of Georgia, that the principal parts of the frontiers of that State have been for several years past invaded, and kept in a state of alarm by the Creek Indians; that the fighting men of that nation, supposed to amount to not less than six thousand, have been so far instigated by refugees and fugitive traders, who had formerly escaped from these States and taken refuge among them, as to keep up constant and bloody incursions on the different parts of that frontier, and that the settlements of four of the exterior counties are almost entirely broken up:

"Resolved, That the superintendant and commissioners for the southern department be instructed, if they shall find it necessary, to notify to the said Indians, that should they persist in refusing to enter into a treaty upon reasonable terms, the arms of the United States shall be called forth for the protection of that frontier."

In Congress, Sept. 1, 1788, "Whereas the United States in congress assembled by their commissions duly appointed and authorized, did, on the twenty-eighth day of November, one thousand seven hundred and eighty-five, at Hopewell, on the Keowee, conclude articles of a treaty with all the Cherokees, and among other things stipulated and engaged by article fourth, that the boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is and shall be the following, viz: [The boundaries are here inserted]. And whereas it has been represented to congress, that several disorderly persons settled on the frontiers of North Carolina, in the vicinity of Chota, have, in open violation of the said treaty, made intrusions upon the said Indian hunting grounds, and committed many unprovoked outrages upon the said Cherokees, who, by the said treaty, have put themselves under the protection of the United States, which proceedings are highly injurious and disrespectful to the authority of the Union, and it being the firm determination of congress to protect the said Cherokees in their rights, according to the true intent and meaning of the said treaty; the U. S. in congress assembled, have therefore thought fit to issue, and they do hereby issue, this their proclamation, strictly forbidding all such unwarrantable intrusions, and hostile proceedings against the said Cherokees; and enjoining all those who have settled upon the said hunting grounds of the said Cherokees, to depart, with their families and effects, without loss of time, as they shall answer their disobedience to the injunctions and prohibitions expressed in this resolution at their peril :

"Resolved, That the Secretary of War be, and he is hereby directed, to have a sufficient number of the troops in the service of the United States, in readiness to march from the Ohio, to the protection of the Cherokees, whenever congress shall direct the same; and that he take measures for obtaining information of the best routes for troops to march from the Ohio, to Chota; and for dispersing among all the white inhabitants settled upon, or in the vicinity of the hunting grounds secured to the Cherokees, by the treaty concluded between them and the United States, Nov. 28, 1785, the proclamation of congress of this date."

The foregoing proclamation and resolution are, in the highest degree, honorable to the congress of the United States. Measures of a directly opposite character must therefore be highly dishonorable. A similar proclamation, followed by a corresponding order from the war department, would now afford a perfect shield to the Cherokees.

AN EXAMINATION OF THE CASES OF FLETCHER vs. PECK, AND JOHNSON vs. M'INTOSH.

The case of Fletcher vs. Peck, was decided in the Supreme Court of the United States, in the year 1810. See Cranch's Reports, vol. 6. This case touches Indian rights but very obliquely and incidentally. It was a suit brought by one white man against another, on a covenant which related to wild lands in the western part of the chartered limits of Georgia. The Indians were not a party. They had no counsel. The decision of the court was not designed to affect them at all.

It was disputed whether Georgia had such a right in lands within her chartered limits, (which lands were occupied by Indians,) as would authorize the State to make a grant of those lands, subject to the Indian title. The Court decided, that the State had such a right. The calling of this right a seisin in fee, was only a consequence of the habit, which all professional men have, of calling new things by old technical names. The fact is, that the right of a community to purchase lands of the Indians, to the exclusion of all other purchasers, has but a very slender resemblance to a seisin in fee, that is, an estate to a man and his heirs. The court did not think, however, that the substance of a party's defence should be lost, merely because he had, in his pleadings, used the old technical wards of English law, and applied them in a sense, not in accordance with their original meaning.

That such is the scope of the two last paragraphs of the opinion, delivered by Chief Justice Marshall, will be evident on a moment's reflection. The paragraphs are these:

"Some difficulty was produced by the language of the covenant and of the pleadings. It was doubted whether a State could be seized in fee of lands, subject to the Indian title: and whether a decision, that they were seized in fee, might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title.

The majority of the Court is of the opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the State."

The Court here acknowledged an embarrasment from the language of the covenant and pleadings, doubtless alluding to the technical phrase, seisin in fee, and confessed an apprehension, that the decision might be construed to mean, that the individuals, to whom the state had granted its right, would recover the land from the Indians, by a writ of ejectment, whenever the grantees should bring such a suit. Against such a construction, however, the Court effectually guarded, by saying, that "the Indian title is certainly to be respected by all courts until it be legitimately extinguished."

In other words, the Indian title is not in the least affected by this decision. Whenever it shall be extinguished, it will be extinguished according to the constitution and laws of the United States, and the treaties with the Indians.

That this is a fair account of the decision, in the case of Fletcher and Peck, so far as relates to the question now before the public, appears to us perfectly clear. But if we have mistaken the meaning of the Court, we hold ourselves open to conviction, whenever that meaning shall be more satisfactorily stated. In the mean time, let those who are alarmed for the Indians, because their title to their country is "only the right of occupancy," be comforted with the reflection, that, by virtue of this right, the Cherokees may occupy the lands of their fathers till the end of the world, unless they shall voluntarily sell these lands to the United States, for the use of Georgia. Their right of occupancy

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reaches back to time beyond the memory of man. This is as good a title, in its own nature, as any title that can be conceived. Blackstone says, "It is agreed on all hands, that occupancy gave the original title to the permanent property in the substance of the earth itself, which excludes every one else but the owner from the use of it." And the right to occupy their country forever has been soïemnly and repeatedly guaranteed to the Cherokees, by the highest authorities of our nation.

It is said they have only the title of occupancy, because they cannot sell their lands, except to the United States, and in a prescribed manner. Nor can they give away their lands, except to the United States. Their rights are restrained in regard to the sale, or cession, of lands, for two good reasons. 1. They have solemnly agreed with the United States, that they will not sell, or cede their lands, except as above mentioned. This was a fair stipulation, which they had full power to make, and which was intended to be, and actually is, for their benefit. 2. The United States have forbidden the whites to purchase of the - Indians, which the United States had a perfect right to do, and which was done for the protection of the Indians. Foreign nations are, of course, excluded from passing our national boundaries; and all the large tribes of Indians have covenanted not to form any connexion with foreigners, which shall be inconsistent with living under the protection of the United States.

In the case of Johnson and M'Intosh, which was decided in 1823, the Supreme Court thus expressed itself:

"It has never been doubted that either the United States or the several States had a clear title to all the lands within the boundary lines described in the treaty, [of 1783] subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it."-8 Wheaton's Reports, p. 585.

The question, in the case of Johnson and M'Intosh, was, whether grants of land in the wilderness, which is now the state of Illinois, made to private purchasers, citizens of Virginia, in the years 1773 and 1775, by chiefs of the Illinois and Piankeshaw tribes of Indians, are good and valid grants, binding on the courts of the United States. The court decided, that such grants were not valid; and, in the course of the decision, went somewhat at length into the consideration of Indian title. We can confidently declare it as our opinion, that, in this very elaborate and candid discussion, the Court advanced nothing which has an unfavourable bearing upon the claims of the Cherokees.

The Court said, indeed, that "the United States, or the several states, have a clear title to all the lands within our national limits." What the Court meant by a "clear title," is abundantly explained to be the exclusive right of acquiring the Indian lands. European nations, the colonies of Europeans, and the independent states of North America, have all claimed that the government, to the exclusion of private purchasers, has the right of acquiring the possession of Indian territory; and that foreign nations could not intrude upon the discoveries of each other respectively. These principles have been so constantly asserted by all the governments above mentioned, that they have become principles of established law; and the Court is bound by them, and cannot go into the consideration of the principles of abstract justice. That is, as we all know, it is the duty of the Court to declare what the law is, and apply it-not to makc the law. The " clear title,” then, which the government has to Indian lands, comprises, first, the power of excluding foreign nations from intruding upon these lands; secondly, the power of forbidding private men from purchasing them; and thirdly, since the adoption of the federal constitution, the exclusive power of the general government to extinguish Indian title by treaty. All these claims of the government have been admitted by the Cherokees, Creeks, Chickasaws, and Choctaws, in the various treaties now in force. The Indians make no complaint, in regard to these claims. Though their natural rights are circumscribed in this manner, yet they very well know it is for their benefit; and they would be the first to desire, that their communities might be defended from the intrigues of foreign nations, and the frauds of private speculators. They would no more think of complaining that their natural rights are limited,

by the claims of the United States, and the stipulations made, for the benefit of both parties, in accordance with those claims, than the people of the United States generally would think of complaining, that the rights of the several states are abridged by the powers given to the general government.

In the passage quoted from Wheaton's Reports, the Court said that the title of the United States was subject to the Indian right of occupancy. What is meant by a right of occupancy? Let the reader look again into Wheaton, p. 574, and he will find, that the Court said of the "original inhabitants" of this continent generally, "They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion."

This is said, be it remembered, respecting Indians generally, found in their native condition, and undefended by any guaranty of territory, or any express stipulation in their favor. The Indians, then, have the right of occupying their country, of retaining possession of it, of using it according to their discretion, and thus far they have a legal as well as just claim. But they cannot sell, except to the government.

Here we have a clear distinction between the rights of the Indians and the rights of Europeans, as fixed by Europeans themselves, and a thousand times admitted by different tribes of Indians. The original inhabitants have the right of occupying their country, and using it, as long as they please, according to their discretion; the descendants of Europeans have confided to their government the exclusive power of extinguishing the Indian title.

These principles are sufficient for the absolute defence of the Cherokees, so long as they behave peaceably, and are not disposed to sell their country. But over and above all this, the United States have solemnly guaranteed to them all their lands;-have covenanted to expel intruders;-have made laws for this purpose; and have, in a hundred instances, admitted that the Cherokee country was under Cherokee jurisdiction, and irresistibly implied, that it was not under the jurisdiction of Georgia. The same thing has been implied, in numberless instances, in the language of the Legislature and Executive of Georgia, as could easily be shown, if our limits permitted. These agents of the State have always been in the habit of distinguishing between the "chartered limits," or the "conventional limits," and the actual limits of the State. It is not five years since Governor Troup wrote a letter to the Secretary of War, in which he argued, that the soil and jurisdiction of the Creek country went together; and that both "passed" to the State of Georgia by the treaty of the Indian Spring. If soil and jurisdiction passed to Georgia by treaty, it requires no conjuror to say, that they were not in Georgia before the treaty was made; and, of course, that the soil and jurisdiction of the Cherokee country, concerning which no treaty of cession has been made, are not in Georgia.

We make two more quotations from the opinion of the Court, in the case of Johnson and M'Intosh :

"It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right." p. 603.

We understand the Court here as declaring, that all the world admits the right of the Indians to retain their possession. The government claims the sole power of acquiring of the Indians their unquestioned right of possession; but this claim of the government is always to be understood as charged, or incumbered, with the existing occupancy of the Indians. In other words, the right of the Indians to occupy their country as long as they please, is in no wise diminished or affected, by the claim of the government to be the exclusive purchaser; and the claim of exclusive purchase, or, as it has usually been called, this right of pre-emption, is the "ultimate title," of which the Court speaks.

Again: "The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right [that is, the