Clause for Bill Regulating Trade with the Indians
[13 Jan. 1793]
Be it enacted &c that no person shall be capable of acquiring any title, in law or equity, to any lands beyond the Indian boundaries and within those of the U.S. by purchase, gift, or otherwise, from the Indians holding or claiming the same: and that it shall be a misdemeanor in any person, punishable by fine and imprisonment1 at the discretion of a jury, to obtain, accept, or directly or indirectly to treat for, any title to such lands from the said Indians or any other for them. But where any such Indians shall of their own accord desire to sell any part of their lands, and it shall be deemed the interest of the U.S. that a purchase shall be made, the same shall be done by treaty or convention, to be entered into by the President of the U.S. and ratified by two thirds of the Senate according to the constitution: to enure to the use of the states respectively, where the said lands lie within the limits of any state, they paying the price, and to the use of the U.S. where such lands lie within any territory ceded to them by particular states.
MS (DNA: RG 59, MLR); entirely in TJ’s hand; undated. PrC (DLC: TJ Papers, 96: 16477). Recorded in SJPL under 13 Jan. 1793: “draught of clause for law rgt buying Indian lands.”
This document was intended to serve as an amendment to a bill for regulating trade and intercourse with the Indians, which was then under consideration by the House of Representatives, and was designed to prevent the unauthorized purchase by American citizens of lands which by treaty the United States government had recognized as belonging to the Indians. Under the the terms of an act for the regulation of trade and intercourse with the Indians passed in 1790, which was to last for only two years, Congress declared invalid all purchases of Indian lands except those made by treaty with the United States. With the time drawing near for the expiration of this act, which failed to end private purchases of Indian lands, the House appointed a committee on 14 Nov. 1792 to draft a new trade and intercourse bill. The committee reported a new bill at the end of November, which over the next month and a half the House read and amended. Since this bill, like its predecessor, merely invalidated illicit purchases of Indian lands, TJ sought to strengthen it by drafting a clause that provided criminal penalties for such acquisitions. James Madison, no doubt one of the congressmen to whom the Secretary of State submitted the document, offered TJ’s amendment to the House in modified form on 15 Jan. 1793, leaving the first sentence intact but altering the second to read as follows: “And that, where any such Indians shall, of their own accord, desire to sell any part of their lands, and it shall be deemed for the interest of the United States, that a purchase shall be made, the same shall be done no otherwise than by treaty or convention, to be entered into pursuant to the constitution; the lands so purchased, to enure to the use of whoever may have the right of pre-emption thereto, and shall pay the price thereof” (Madison, Papers, xiv, 442). Two days later the House approved the amendment as offered by Madison after first deleting TJ’s phrase at the discretion of a jury in the first sentence—specifying instead a maximum fine of $4,000 and a maximum prison term of one year for violators of the act—and omitting the passage “Indians shall … that a” in the second sentence as revised by Madison. The House then passed the trade and intercourse bill on 18 Jan. 1793 and sent it to the Senate. The Senate made still more changes in the TJ-Madison amendment, substantially altering the wording (though not the meaning) and specifying a maximum fine of $1,000 and a maximum term of imprisonment of one year for offenders. The House accepted these amendments, which remained faithful to TJ’s objective of employing criminal sanctions to deter unauthorized Indian land purchases, and the trade and intercourse bill became law on 1 Mch. 1793 (JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., Gales & Seaton, 1826, 9 vols. description ends , i, 629, 652, 656, 671, 674, 675, 719, 720, 722, 723; JS description begins Journal of the Senate of the United States, Washington, D.C., Gales, 1820–21, 5 vols. description ends , i, 472, 473, 489–90, 491–2, 493, 495, 498, 499, 501; Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The first two volumes of the set cited here have “Compiled … by Joseph Gales, Senior” on the title page and bear the caption “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. The remaining volumes bear the caption “History of Congress” on both recto and verso pages. Those using the first two volumes with the latter caption will need to employ the date of the debate or the indexes of debates and speakers. description ends , ii, 2301–3, iii, 827–8, 1442–5; National State Papers description begins Eileen D. Carzo, ed., National State Papers of the United States, 1789–1817. Part II: Texts of Documents. Administration of George Washington, 1789–1797, Wilmington, Del., 1985, 35 vols. description ends , xvii, 117–28). For a discussion of the role of unauthorized land purchases in exacerbating relations with the Indians during the Washington administration, see Francis P. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790–1834 (Cambridge, Mass., 1962), 139–58.
1. TJ here interlined and erased “and by incapaci.”