Part 23

Washington, February 3, 1831. To the House of Representatives:

I transmit to the House of Representatives a report from the Treasury Department, in compliance with the resolution of the House of Representatives of the 3d ultimo, calling for the correspondence in relation to locating a cession of lands made or intended to be made by the Pottawattamie tribe of Indians for the benefit of the State of Indiana, etc.

ANDREW JACKSON.

To the House of Representatives of the United States:

I communicate to the House of Representatives, in compliance with their resolution of the 29th of January last, calling for information and papers respecting the seizure of American vessels by the naval forces of Portugal forming the blockade of the island of Terceira, a report from the Secretary of State, which, with the documents accompanying it, contains the information in his Department upon that subject, and avail myself of the occasion further to inform the House of Representatives that orders had before the introduction of the resolution referred to been given to fit out a ship of war for the more effectual protection of our commerce in that quarter.

ANDREW JACKSON. February 16, 1831.

Washington, February 19, 1831. The Speaker of the House of Representatives:

I present for the consideration of Congress a report from the Secretary of War, relative to a compromise of title of the island on which Fort Delaware has been constructed.

ANDREW JACKSON.

(The same message was sent to the Senate.)

February 22, 1831. To the Congress of the United States:

I transmit to Congress a letter from Mr. Rhind, stating the circumstances under which he received the four Arabian horses that were brought by him to the United States from Turkey. His letter will enable Congress to decide what ought to be done with them.

ANDREW JACKSON.

February 22, 1831. To the Senate of the United States:

I have received your resolution of the 15th instant, requesting me "to inform the Senate whether the provisions of the act entitled 'An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers,' passed the 30th of March, 1802, have been fully complied with on the part of the United States Government, and if they have not that he inform the Senate of the reasons that have induced the Government to decline the enforcement of said act," and I now reply to the same.

According to my views of the act referred to, I am not aware of any omission to carry into effect its provisions in relation to trade and intercourse with the Indian tribes so far as their execution depended on the agency confided to the Executive.

The numerous provisions of that act designed to secure to the Indians the peaceable possession of their lands may be reduced, substantially, to the following: That citizens of the United States are restrained under sufficient penalties from entering upon the lands for the purpose of hunting thereon, or of settling them, or of giving their horses and cattle the benefit of a range upon them, or of traveling through them without a written permission; and that the President of the United States is authorized to employ the military force of the country to secure the observance of these provisions. The authority to the President, however, is not imperative. The language is:

It shall be lawful for the President to take such measures and to employ such military force as he may judge necessary to remove from lands belonging to or secured by treaty to any Indian tribe any citizen who shall make a settlement thereon.

By the nineteenth section of this act it is provided that nothing in it "shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of citizens of the United States and being within the ordinary jurisdiction of any of the individual States." This provision I have interpreted as being prospective in its operation and as applicable not only to Indian tribes which at the date of its passage were subject to the jurisdiction of any State, but to such also as should thereafter become so. To this construction of its meaning I have endeavored to conform, and have taken no step inconsistent with it. As soon, therefore, as the sovereign power of the State of Georgia was exercised by an extension of her laws throughout her limits, and I had received information of the same, orders were given to withdraw from the State the troops which had been detailed to prevent intrusion upon the Indian lands within it, and these orders were executed. The reasons which dictated them shall be frankly communicated.

The principle recognized in the section last quoted was not for the first time then avowed. It is conformable to the uniform practice of the Government before the adoption of the Constitution, and amounts to a distinct recognition by Congress at that early day of the doctrine that that instrument had not varied the powers of the Federal Government over Indian affairs from what they were under the Articles of Confederation. It is not believed that there is a single instance in the legislation of the country in which the Indians have been regarded as possessing political rights independent of the control and authority of the States within the limits of which they resided. As early as the year 1782 the Journals of Congress will show that no claim of such a character was countenanced by that body. In that year the application of a tribe of Indians residing in South Carolina to have certain tracts of land which had been reserved for their use in that State secured to them free from intrusion, and without the right of alienating them even with their own consent, was brought to the consideration of Congress by a report from the Secretary of War. The resolution which was adopted on that occasion is as follows:

Resolved, That it be recommended to the legislature of South Carolina to take such measures for the satisfaction and security of said tribes as the said legislature in their wisdom may think fit.

Here is no assertion of the right of Congress under the Articles of Confederation to interfere with the jurisdiction of the States over Indians within their limits, but rather a negation of it. They refused to interfere with the subject, and referred it under a general recommendation back to the State, to be disposed of as her wisdom might decide.

If in addition to this act and the language of the Articles of Confederation anything further can be wanting to show the early views of the Government on the subject, it will be found in the proclamation issued by Congress in 1783. It contains this language:

The United States in Congress assembled have thought proper to issue their proclamation, and they do hereby prohibit and forbid all persons from making settlements on lands inhabited or claimed by Indians without the limits or jurisdiction of any particular State.

And again:

Resolved, That the preceding measures of Congress relative to Indian affairs shall not be construed to affect the territorial claims of any of the States or their legislative rights within their respective limits.

It was not then pretended that the General Government had the power in their relations with the Indians to control or oppose the internal polity of the individual States of this Union, and if such was the case under the Articles of Confederation the only question on the subject since must arise out of some more enlarged power or authority given to the General Government by the present Constitution. Does any such exist?

Amongst the enumerated grants of the Constitution that which relates to this subject is expressed in these words: "Congress shall have power to regulate commerce with the Indian tribes." In the interpretation of this power we ought certainly to be guided by what had been the practice of the Government and the meaning which had been generally attached to the resolves of the old Congress if the words used to convey it do not clearly import a different one, as far as it affects the question of jurisdiction in the individual States. The States ought not to be divested of any part of their antecedent jurisdiction by implication or doubtful construction. Tested by this rule it seems to me to be unquestionable that the jurisdiction of the States is left untouched by this clause of the Constitution, and that it was designed to give to the General Government complete control over the trade and intercourse of those Indians only who were not within the limits of any State.