and Indians' Advocate
Wednesday, December 23, 1829
Vol. II, no. 37
Page 1, col. 1b-Page 2, col. 2a
From the Missionary Herald
The reader will have observed that there are two distinct topics of importance, in the above mentioned letter from the President, and in the answer of Colonel Folsom.
The first relates to the alleged influence of bad white men, in preventing emigration of the Indians. Of this influence Col. Folsom declares his entire ignorance; which was a polite way of saying that it did not exist. If such an influence existed to any considerable extent, it would seem impossible that he should have remained ignorant of it; and his character for integrity would forbid the supposition that he made a false declaration.
Besides, all these transactions were public. Numbers of the interior chiefs and people were present. They heard the letter of the President translated; and after considerable interval for consideration, they heard the reply of the chief. They must have known whether they had themselves been influenced by white men, or not; and if their chief, in his present circumstances, had uttered what they knew to be false, they would probably have exposed him. At any rate, he would have lost that influence, which he has been many years in acquiring, and which he justly values as the means of usefulness to his countrymen. The proceedings at this council alone, would, therefore, seem to prove, that the President must have been misinformed as to the influence of white men on the question of removal.
It is remarkable, that while the President supposes white men to have used an influence with the Choctaws, against a removal, the chief is principally solicitous, lest white men, and the sons of white men, should be suspected by the full Choctaws of having used a secret influence in favor of that measure. The three highest chiefs are the sons of white men by Indian women. Although elevated to their present standing by great majorities, in their respective districts; and although at present strongly supported, in their attempts to promote civilization; yet they have unsuccessful rivals among the full Choctaws who would make great use of any detected agency, on the part of these chiefs, or of any white men intimate with them which had been brought to bear upon the government, in such manner as to favor a removal. Col. Folsom, on this account, and not for his own satisfaction, publicly asked the Agent of the United States, whether these overtures of the government were owing to the influence of white men, or the sons of white men, residing in the Choctaw Nation.
In regard to the other topic of the President's letter, viz: his inability to prevent the laws of the State of Mississippi from being extended over the Choctaws, the following things seem worthy of consideration.
1. The Choctaws live upon land which they received from their ancestors, the limits of which are perfectly defined by existing treaties between them and the United States.
2. These treaties were made in the years 1786, 1801, 1802, 1803, 1805, 1806, 1820, and 1825; and of course the first six of them were made before the State of Mississippi had an existence. In every treaty, the Choctaws were considered as having a right to their country, and as exercising sovereignty over it. The last treaty but one was negociated [sic] by Gen. Jackson and Gen. Hinds. The preamble says, that it is an "important object" with our government "to promote the civilization of the Choctaw Indians" and "to protect them as a nation." The same preamble says, "that it is desirable to the State of Mississippi to obtain a small part of the land belonging to said nation." On these accounts, the southern part of the Choctaw country was ceded to the United States and a large tract of land beyond the Mississippi with an annual sum of money was received as compensation. This was only nine years ago.
It was expected by the parties, that such Choctaws, as should prefer the life of a hunter, would remove beyond the Mississippi. In point of fact, few have removed, if any.- Thus it appears by actual experiment, that the people prefer remaining on the land of their fathers. As it was supposed that some would remove, a school fund*, to be formed in pursuance of this treaty, was to be divided in the proportion of three quarters to the schools east of the Mississippi, that is, in the present Choctaw country, and one-quarter for schools among those, who might emigrate to the west of the Mississippi. It is manifest, therefore, that in the contemplation of this treaty, the Choctaws were to reside permanently upon the lands, which they then inhabited.
When the State of Mississippi was formed, the Choctaws were residing on their ancient possessions. These possessions had been acknowledged to belong to the Choctaws, in six successive treaties during a period of more than thirty years. Neither the government of the United States, nor private citizens, of the United States, could encroach upon the Indian limits. How could the United States, then confer on a new state, formed in such circumstances, the power of rendering so many treaties nugatory? the power of doing alone, as a single member of the Union, what the whole Union was restrained from doing by the most solemn acts of the general government.
Again: the preamble already quoted says, that it is desirable to the State of Mississippi "to obtain a small part" of the Choctaw country; and even this must be obtained for the state, by the general government, in a treaty solemnly made and ratified. But how is this reconcilable with the doctrine, that the State of Mississippi, may take possession of the whole Choctaw country, by a single act of legislation? and that the United States have no power to prevent it?
The fourth article of the treaty of 1820 is in the following words:
"The boundaries hereby established between the Choctaw Indians and the United States, on this side of the Mississippi River, shall remain without alteration until the period, at which said nation shall become so civilized and enlightened, as to be made citizens of the United States; and Congress shall lay off a limited parcel of land for the benefit of each family, or individual, in the nation."
In the subsequent treaty, negociated by Mr. Calhoun, Jan. 20, 1825 the same subject was taken up, as follows:
"It is further agreed, that the fourth article of the treaty aforesaid shall be so modified as that the Congress of the United States shall not exercise the power of apportioning the lands, for the benefit of each family or individual, of the Choctaw Nation, and of bringing them under the laws of the United States, but with the consent of the Choctaw Nation."
In framing the fourth article here referred to, the intention must have been either that the Choctaws would ultimately form a territory by themselves which should be taken under the care of the general government; or that they should become citizens of the State of Mississippi, and thus citizens of the United States. But neither of these things were to take place, till the Choctaws should have become enlightened, and Congress should have declared them to be so and should have made an apportionment of their lands.
In the last treaty, framed less than five years ago, it is solemnly stipulated, that the Choctaws shall not be brought under the laws of the United States in any sense, "but with the consent of the Choctaw Nation." This is the same thing as to say, that the Choctaw Nation is left where it was originally, and where the other Indian nations now are: viz. under their own laws, and not under the laws of any state, nor of the United States.
Where can be the difficulty, then, in preventing the laws of Mississippi
from being extended over the Choctaws? Treaties are declared in the Constitution
of the United States to "be the supreme law of the land, and the judges, in
every state shall be bound thereby, anything in the constitution or laws of
any state to the contrary notwithstanding." The President of the United
States is charged with the execution of the laws; and it would seem that he
should have a special regard to treaties, as they originate with him, and the
faith of the nation is confided to his care. Till the Choctaws, as a nation,
have formally consented to be governed by the laws of the United States, and
Congress shall have pronounced them to be enlightened, and shall have divided
their lands, and declared in what sense they shall become citizens of the United
States, and how their rights of person and property shall be secured;-till all
these things shall have been done, the treaties, not one of which has been abrogated,
throw a wall around them, which no individual, nor any state, has a right to
pass. Of course, the treaties alone afford sufficient authority to prevent
any encroachment upon the territory of the Choctaws, by the legislature of Mississippi,
or from any other quarter.
But this matter is not left to treaties alone. In the law for regulating intercourse with the Indian tribes, approved March 30, 1802, and now in force, it is enacted that, the mere crossing the Indian line to hunt or to get pasturage for cattle, shall expose a citizen of the United States to a fine of $100, or imprisonment for a month; that if citizen shall make a settlement on the Indian territory, or shall, attempt to survey any part of it, or designate any boundary, by marking trees or otherwise, "such offender shall forfeit a sum not exceeding $1,000, and suffer imprisonment not exceeding twelve months." The same law provides, that no purchase of lands from any nation or tribe of Indians shall be valid, unless made by the United States in the form of a treaty; and that it shall be a misdemeanor, punishable by fine and imprisonment, for any person not employed under the authority of the United States, to treat with any nation of Indians for their lands. The courts of the United States are directed (section 15) to proceed in trying these offenses, "in the same manner as if such crimes, offenses, and misdemeanors, had been committed within the bounds of their respective districts." Thus it is irresistible implied that the territories of Indian nations are not within the regular jurisdiction of the courts either of the several states or of the United States. Of course, the laws of the several states, or of the United States cannot be extended over the Indians unless by the question of a treaty made with their consent. Of such extension of law, over any considerable tribe of Indians, there has yet been no example in our country.
The President of the United States is clothed with as much power to execute the laws for the protection of the Indians as to execute any laws whatever. As it is a case which requires promptness and decision, the President is authorized by the 5th section of the intercourse law, "to take such measures, and to employ such military force, as he shall judge necessary," to remove any persons, who attempt to settle on Indian territory. It can make no odds whether such attempt be made under the authority of a state or by individuals in their private capacity. We cannot but conclude, therefore; that the President is mistaken in supposing that he has not power to prevent the extension of the laws of Mississippi over the Choctaw country.
The question is sometimes asked, Whether it would not be better for the Indians to come under the laws of several states? A full answer to this question would lead to a longer discussion than is now desirable. It may be safely said, however, that not one of the states, which claim jurisdiction over the Indians, has the slightest intention of placing the Indians, as to their personal and civil rights, on the same footing with white citizens; and that, even if the legislatures had such an intention, it would be found impossible to carry it into effect. Some of these states have already enacted laws, which declare that no Indian, or descendant of an Indian, shall be admitted as a witness in any court of justice. This is a sufficient specimen of the kind of legislation, which will be pursued respecting the Indians, if they are to be brought under the laws of the States.
3. In regard to the feelings of the Cherokees, Chickasaws, and Choctaws, respecting their removal, the evidence is abundant, that they are generally, if not universally, opposed to it, in the strongest manner. Whenever individuals of these nations assent to it, there is reason to believe that they do so, merely because they imagine remonstrance to be useless, and the advise of the government to be equivalent to a command. The Creeks, so far as can be judged from the newspapers, are in the same state of feeling.
The Christian public should be fully aware, that these four Indian tribes, containing and aggregate population of 60,000 souls, are strongly attached to the country, which they received from their fathers;-that they consider themselves as having a perfect right to it;- that they are extremely reluctant to leave it;-that they think it guarantied to them by numerous treaties with the United States;- that they will not remove, unless upon compulsion, or in the apprehension of evils not less to be dreaded than compulsion:- that they regard a removal, in such circumstances, to be altogether unjust and oppressive; and that they importunately call upon the friends of justice and humanity to interpose in their behalf, and arrest a course of measures which, as they view the matter, will be disastrous in the extreme.
In the speech of Col. Folsom, which we have given there is direct proof, as he spoke by the authority of the Council, and in the presence of all who were assembled that the chiefs and people, in two out of the three districts of the Choctaw Nation, are greatly distressed at the prospect of being compelled to remove. In this matter there can be no mistake nor misapprehension.
4. It is evident, also, from Col. Folsom's speech, that he would regard the extension of the laws of Mississippi over the Choctaws, as a great calamity, as altogether oppressive; and as neither more nor less than reducing the Indians to slavery. In making the laws which must have an effect on all their dearest interests, the Choctaws would have no influence. In executing the laws they would have no agency. White settlers would come into contact with almost every Choctaw family. There would be little responsibility to any human tribunal, for the manner in which Indians were treated by whites. How can the Choctaws be sure that the laws will not be formed with a special view to the vexation, expulsion, or extirpation of the Indians! This has been threatened by whites often; and how natural is it that Indians should fear the exertion of these threats.
The Choctaws in the execution of their own laws, have greatly diminished intemperance, by seizing and destroying whisky, when discovered within their boundary. But under the laws of Mississippi, whiskey may be carried to every man's door. It would be thus carried; and nearly all the Choctaws except such as are under the powerful influence of religion, would be irresistibly tempted, in their state of vassalage and despondency to abandon themselves to drinking, idleness and vagrancy.
It has been already intimated that white men would everywhere come into contact with Indians, if the laws of several States were extended over them. This would certainly be the case. The States do not covet the barren title of sovereignty. They expect that the lands of the Indians will be divided among the whites.--Thus is the professed and avowed ground of all their proceedings, in relation to the subject. Let it be supposed, then, that measures should be taken to bring the Indian lands into the market, reserving to each head of an Indian family, the farm which he now occupies, is it not manifest that the whole country would soon be filled with a white population? Let it be supposed, moreover, that, by the laws of the States, the farm of every Indian might be sold by him, or taken in execution for debt;-and all this, while no Indian could testify in a court of justice, much less sit as a juryman, or vote for his rulers, and while he would be surrounded by sellers of whiskey, and some of the inhabitants, at least would defraud him, if they could;-and while he would feel every day of his life; that he was despised, hated, and oppressed;-in such circumstances, how long would he retain property and a home? and what would be the prospects of his children?
5. Some parts of Col.Folsom's speech have, as we apprehend, been greatly misunderstood by readers. After repeating some part of the President's language, he thus expresses himself concerning it; "We do not say that his words are lies. We think they are true and respect them as sacred. But we are distressed. Oh that our Great Father would love us! On that Col. Ward would love us! Oh that the king of Mississippi would love us!"
The meaning of this passage we take to be as follows; "It is not for us to distrust the words of the President of the United States. We render all proper respect to his declarations. We do not doubt his sincerity in saying that the laws of Mississippi will be extended over us, and that he therefore thinks it for out [sic] benefit that we should immediately consent to remove. Hence our extreme distress. Oh that the President of the United States would compassionate us, in our present perplexed and forlorn condition! Oh that the Agent of the United States, who has resided among us and knows our condition, our anxieties and fears, would compassionate us, and make moving representations in our behalf. Oh that the government of Mississippi would feel for our distress; respect our rights, and let us remain in the peaceable enjoyment of our possessions!"
In another place, Col. Folsom says; "Here we have lived, and here we wish to live. But whatever the white man wishes to do, he will do. If he shall will us to stay here, we shall stay. If he will us to go, we shall go." This passage is understood by some to mean, that the Choctaws will acquiesce in whatever the government does; or at least that they will make no further remonstrance. But we do not thus understand it. The speaker had previously expressed a most decided opinion, that the Choctaws have a perfect right to their country. Immediately before uttering the passage just quoted, he had expressed due respect for the government of the United States and the government of Mississippi. He was not disposed to charge the rulers of the whites with insincerity, or want of benevolence; nor to say anything, which should provoke their displeasure. This he did not think consistent with the decorum of a public occasion. Certainly it would not have been inconsistent with Indian politeness. Indeed, there is much reason to think, that he was altogether inclined to put the most favorable construction upon the measures and designs of our public agents. He then proceeds, in the passage quoted, which is doubtless of the following import. "Our right to our country is incontrovertible. We wish to retain our hereditary possessions. But the power of the United States is irresistible. It is a question of mere force. We must submit as a matter of inevitable necessity. If the whites choose to take our lands, they must take them. If they send us beyond the Mississippi, we must go. Our wishes, and our rights will have nothing to do in the decision of the question." This interpretation renders the whole speech entirely consistent, but any other would make it full of contradictions.
At the close of these remarks, we deem it proper to say, that the Indians seem to us to be supported in the views which they entertain of their own rights, not only by the abstract principles of justice, but by the natural and fair meaning of all the treaties, which the whites have made with them; by the laws of Congress respecting them; and by authorized declarations of public agents to them,-declarations continued during half a century, & in the course of that time, very frequently repeated."
If any apology would be deemed necessary for this expression of an opinion,
which is opposed to contemplated measures of the government of the United States,
such an apology may be found in the exigency of the case, the great interests
at stake, and especially in the public and official solicitation of opinions,
by the authorized agent of the general government
It is hardly necessary to add, that the opinion here expressed, as well as most of the reasoning on which it is founded, applies to the case of the Cherokees, Creeks, and Chickasaws, all of which tribes hold similar relations with the United States.