resided, and where a
few of them yet remain. These tribes have been left to the undisturbed
control of the States in which they were found, in conformity with the
view which has been taken of the opinions prevailing up to 1789 and the
clear interpretation of the act of 1802. In the State of New York, where
several tribes have resided, it has been the policy of the Government to
avoid entering into quasi treaty engagements with them, barely
appointing commissioners occasionally on the part of the United States
to facilitate the objects of the State in its negotiations with them.
The Southern States present an exception to this policy. As early as
1784 the settlements within the limits of North Carolina were advanced
farther to the west than the authority of the State to enforce an
obedience of its laws. Others were in a similar condition. The
necessities, therefore, and not the acknowledged principles, of the
Government must have suggested the policy of treating with the Indians
in that quarter as the only practicable mode of conciliating their good
will. The United States at that period had just emerged from a
protracted war for the achievement of their independence. At the moment
of its conclusion many of these tribes, as powerful as they were
ferocious in their mode of warfare, remained in arms, desolating our
frontier settlements. Under these circumstances the first treaties, in
1785 and 1790, with the Cherokees, were concluded by the Government of
the United States, and were evidently sanctioned as measures of
necessity adapted to the character of the Indians and indispensable to
the peace and security of the western frontier. But they can not be
understood as changing the political relations of the Indians to the
States or to the Federal Government. To effect this would have required
the operation of quite a different principle and the intervention of a
tribunal higher than that of the treaty-making power.

To infer from the assent of the Government to this deviation from the
practice which had before governed its intercourse with the Indians, and
the accidental forbearance of the States to assert their right of
jurisdiction over them, that they had surrendered this portion of their
sovereignty, and that its assumption now is usurpation, is conceding too
much to the necessity which dictated those treaties, and doing violence
to the principles of the Government and the rights of the States without
benefiting in the