James Madison Papers

Indian Intercourse Bill, [9 April] 1796

Indian Intercourse Bill

[9 April 1796]

In response to problems arising from the 1795 treaty of Greenville and raids by Tennessee settlers on the Cherokee nation in 1791 and 1793, Smith (South Carolina) moved, on 10 December 1795, that the House make further provision to secure the frontiers and to protect Indians from unlawful attack. A bill reported on 25 January 1796 attempted to define in law an Indian boundary, penalized settlers for unlawfully trading with Indians or encroaching on their lands, and authorized the president to appoint agents to reside among the Indians. This bill was discussed, recommitted, and reported back to the House between 2 and 24 February, before debate began again on 8 April over the penalty clause which enacted a forfeiture of any right to preempt Indian land for violation of the law. Several members then questioned whether this clause conflicted with the provision of the Constitution limiting forfeitures to the life of the person attainted (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 4th Cong., 1st sess., 131, 266, 286, 288–90, 325, 328, 364, 892–93, 894–99).

Mr. Madison said it was not necessary to investigate the Indian mode of occupancy in opposition to that of civilized society. The natives are understood by the nations of Europe possessing territories on this continent, to have a qualified property only in the land. If they had an unqualified title they could not be prevented from ceding to foreigners their lands lying within the limits of the United States. In that point of view, he thought the doctrine of the gentleman1 last up particularly objectionable. He thought the clause of the constitution which had been referred to, was worthy of attention. There could be no doubt, when the constitution forbid forfeitures in case of treason, the forfeiture of that property was forbidden, of that kind of property incident to the corruption of blood. They must resort to the technical phrase, and they would find that forfeitures meant real estates. The gentleman from Maryland (Mr. Crabb) said, that the prohibition of the forfeiture of property, where life was not forfeited, was just, and not against the constitution. This remark was of more weight than any other offered, though he did not admit it to be satisfactory. On examining the bill, he believed both life and property might be forfeited. It was true, there might be a case in which the forfeiture of private property would be greater than real estate; but this was a general rule, and they obtained the benefit of the general rule, and paid the price of the exceptions for it. This law, he said, was against the spirit of the constitution; he would not say that it was against the letter, but it was certainly against the spirit of the constitution; for, if they allowed the forfeiture of real estate in any case besides treason, they might do it for treason also, by calling the crime by another name.

Claypoole’s Am. Daily Advertiser, 15 Apr. 1796 (reprinted in Philadelphia Gazette, 16 Apr. 1796). After further debate, the bill passed on 13 Apr., and the president signed “An Act to regulate Trade and Intercourse with the Indian Tribes and to preserve Peace on the Frontiers” on 19 May (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:469–74).

1James Hillhouse (Connecticut) had argued that the Indians held title to their lands in fee simple and therefore could not be dispossessed by the law in question.

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