Article 1, Section 8, Clause 3 (Indians)

Document 1

James Monroe to James Madison

At fort Stanwix you were necessarily acquainted with the variance which had taken place between the Indian Commissioners of the U. States, & those of New York as well as of the principles upon which they respectively acted & the extent to which they carried them: as I reach'd N. York about eight days after you had left it & the Ind: Comm'rs were then on the ground & have not since made a stat'ment of their final transactions there. I have nothing new to give you upon that head. The questions wh. appear to me to arise upon the subjects of variance are 1. whether these Indians are to be consider'd as members of the State of N. York, or whether the living simply within the bounds of a State, in the exclusion only of an European power, while they acknowlidge no obidience to its laws but hold a country over which they do not extend, nor enjoy the protection nor any of the rights of citizenship within it, is a situation wh. will even in the most qualified sense, admit their being held as members of a State? 2. whether on the other hand this is not a description of those whose manag'ment is committed by the confideration to the US. in Congress assembled? In either event the land held by these Indians, having never been ceded either by N. York or Massachusetts belongs not to the U. States; the only point then in wh. N. York can be reprehensible is, for preceding by a particular [state treaty], the general Treaty. This must be attributed to a suspicion that there exists in Congress a design to injure her. The transaction will necessarily come before us, but will it not be most expedient in the present state of our affairs to form no decision thereon? I know no advantages to be deriv'd from one. If the general treaty hath been obstructed the injury sustain'd in that instance is now without remedy. A decision either way, will neither restore the time we have lost nor remove the impressions wh. this variance hath made with the Indians & in the Court of G. Britain respecting us. If the right of Congress hath been contraven'd shall we not derive greater injury by urging it to the reprehension of New York who holds herself aggriev'd in other respects than by suffering our sense of that delinquency to lay dormant? Our purchases must be made without her bounds & those Indians whose alliance we seek inhabit a country to which she hath no claim.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Indians), Document 1
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_indianss1.html
The University of Chicago Press

The Papers of John Marshall. Edited by Herbert A. Johnson et al. Chapel Hill: University of North Carolina Press, in association with the Institute of Early American History and Culture, Williamsburg, Virginia, 1974--.