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 least degree the Indians.  The Indians thus situated can not be regarded in any other light than as members of a foreign government or of that of the State within whose chartered limits they reside.  If in the former, the ordinary legislation of Congress in relation to them is not warranted by the Constitution, which was established for the benefit of our own, not of a foreign people.  If in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control.  To maintain a contrary doctrine and to require the Executive to enforce it by the employment of a military force would be to place in his hands a power to make war upon the rights of the States and the liberties of the country—­a power which should be placed in the hands of no individual.

If, indeed, the Indians are to be regarded as people possessing rights which they can exercise independently of the States, much error has arisen in the intercourse of the Government with them.  Why is it that they have been called upon to assist in our wars without the privilege of exercising their own discretion?  If an independent people, they should as such be consulted and advised with; but they have not been.  In an order which was issued to me from the War Department in September, 1814, this language is employed: 

All the friendly Indians should be organized and prepared to cooperate with your other forces.  There appears to be some dissatisfaction among the Choctaws; their friendship and services should be secured without delay.  The friendly Indians must be fed and paid, and made to fight when and where their services may be required.

To an independent and foreign people this would seem to be assuming, I should suppose, rather too lofty a tone—­one which the Government would not have assumed if they had considered them in that light.  Again, by the Constitution the power of declaring war belongs exclusively to Congress.  We have been often engaged in war with the Indian tribes within our limits, but when have these hostilities been preceded or accompanied by an act of Congress declaring war against the tribe which was the object of them?  And was the prosecution of such hostilities an usurpation in each case by the Executive which conducted them of the constitutional power of Congress?  It must have been so, I apprehend, if these tribes are to be considered as foreign and independent nations.