and Indians' Advocate
Vol. II, no. 37
Wednesday, December 23, 1829
Page 2, col. 2a-4b
From the Connecticut Courant.
The Choctaws.- Whenever two nations are brought into contact, for the purpose of discussing conflicting claims, through the medium of duly organized agents; they become a spectacle to the world. The interest felt is in proportion to the rank which the parties hold among the nations of the earth, the character which they have maintained in their inter-national intercourse; and it is graduated also, by the importance of the principles involved in the discussion. If the powers are free, enlightened, christian nations, we expect ability at least, if not fairness.
I was lead [sic] to these reflection on reading an official communication from the American Secretary at [sic] War, to the Chiefs of the Choctaw Nations, assembled in Council, through Col. Ward the United States' agent; and the answer of Col. Folsom, the head Chief, in behalf of the Council.
I propose to analyze the claims here made on the part of the United States, and the answer given; though doubtless the further answer, which is to be in writing, will be more complete.
The American Minister asks-" How can the Indians expect to remain where they are?" To this the Indian Minister replied-"We do not wish to sell our land and remove. This land our Great Father above gave us.- We stood on it before the white man came to the edge of the American land. We sit on it still. It belongs to no one in any place but ourselves." How simple, yet how conclusive the answer? We trace, says the Indian, our title back to the Creator of the earth, and a continued, peaceable possession, in ourselves and those under whom we claim down to the present time- a title paramount to all other titles; recognized by all writers on the laws of nature, and of nations, and of municipal law, not to be the best title, only, but the basis of all title, the rights of meum and tuum being founded on it.
Look at our position, is it not in principle this? I go to my neighbor- look upon his wealthy possessions, and ask him "how can you expect to retain your house and land?",- "Expect it, sir, why this estate, that you have cast your covetous eyes upon, is an ancestral estate. I can trace my title through a succession of ancestors up to my progenitors, who first discovered and planted this island. The highest title that many around me claim is by original deed from him, (though there are some squatters) but I hold my title by inheritance: Please to walk out, sir." With this I am in nothing abashed, but reply, "Stop-I have an argument which perhaps will prevail-do you notice my sword?" "For, the American Minister, continues, "They (the Indians) are surrounded by the whites. They are within the limits and jurisdiction of a State whose laws may at any time be extended over them."
To this the Choctaw Minister replies, "White men came and sat down here and there, and are all around us. When they have wished to buy land of us, we had good councils together,(we sold to them.)- The white man always said the land is yours, it is yours, it is yours.- Now a different talk is sent to us.- We are distressed."
Reader, do you not here perceive the sword. The Choctaw does, and is distressed. Ah, poor fellow, you would not have used that word hundred years agone [sic], nor would you then have been told that any nation on earth could extend its laws over you!
The American agent proceeds thus, "nor can the United States prevent it, because they have not the constitutional power to prevent it."
Here the Choctaw Chief, perceiving that he is threatened, and that argument avails nothing, like a man with a dagger at his breast pleads for life. He appeals to our magnanimity, and says, "We are told that the King of Mississippi is about to extend his laws over us. Our hands are not strong. The King of Mississippi has strong arms, and many warriors.- We are distressed." And well he may be, for the Indian well knows from the example of Georgia, that those laws will be the Tyrants Scourge. Their object, and their effect, will be extermination.
I now beg the reader's attention whilst I examine the question, whether the General Government have not the power, and ought not to exercise it, to protect the Indians against the rapacity of those States who may attempt thus to destroy them.
The claim is this: "The Choctaws are within the limits and jurisdiction of a State, and consequently may be subjected to its laws, and the General Government cannot constitutionally interfere to prevent the operation of such laws.
1. How came the Choctaws within the limits and jurisdiction of a State? Our State Governments were established by the consent and act of the people, and admitted in the manner prescribed by the Constitution of the United States. Were the Indians ever considered, or treated as a part of our citizens, or were they subject to us as slaves? Had they ever had any voice in establishing any State Government, or forming the General Government? Never.- When there was no belt called State limits, encircling that nation. When Mississippi was only a territory of the United States, wholly under its jurisdiction, and subject to its laws only, the Choctaws existed there, an independent nation, governing themselves, and the United States never attempted to impose laws upon them, but implicitly acknowledged their inability to do it, by treating them as an independent nation. Could then the admission of the people of that territory into the Union, alter their relation to the Indians? Not at all. The only effect of their State sovereignty was the power of governing themselves, instead of being governed by the laws of the United States; and even this power is restricted, because by their admission, they became subject to the Constitution of the United States, and treaties made under it, which are the supreme law of the land. We do not then discover any mystical power in the "State limits" of Mississippi by which its people may govern the Indians.
2. Cannot the General Government interfere to prevent the operation of State laws in the case supposed?
If the position be correct, that the Choctaws are a distinct tribe or nation, whether savage or civilized no matter, the solution of the question is easy. That they are a distinct, independent nation, is proved by the following facts:- They have always existed as such and have never been recognized as our own citizens, or admitted to any of the privileges or subjected to the burdens of citizenship. They had no voice in framing the constitution of Mississippi, nor of the United States. On the contrary, they have always claimed and exercised the powers of an independent nation; such as making war and peace, forming treaties, and making and executing their own laws. If these are not the attributes of sovereignty, we know not what are: It is but a conclusion from these premises, that in all cases wherever any law of Mississippi should be made to bear upon them, the courts of the U. S. in a case bro't [sic] before them, would declare such law to be void.
The Constitution provides that "the Judicial power shall extend to controversies between the citizens of a State, and foreign States, citizens or subjects." - Art. 3, sec. 2. Now take a case. Mississippi imposes taxes on their lands:- a collector enters and levies his tax on a Choctaw farm and conveys it to the purchaser, an American; he brings ejectment to recover possession. The case would be between a "citizen of a State" and a "foreign subject," and consequently may be removed into the United States' Courts for trial. The constitutionality of the law, imposing the tax would come distinctly in issue, and there can be no doubt that it would be declared void.
This case illustrates the whole; for let a law of any kind, made by a State, touch a Choctaw, and he could find redress in the same way.
But there is another mode of proving that the United States have the power and are bound to interfere to protect the Indians.
A treaty between two Powers is a law of itself, and can exist only between independent Sovereignties. It is construed by the laws of nations only, and cannot be affected by any law that either of the contracting powers or any State may make.
The United States have made Treaties with the Choctaw Nation.- I care not whether there is any express admission in any of them, that the Choctaws are an independent nation. The Treaty, ex vi termini proves that. It is entered into for the very reason, they consent to bind themselves, one to another.
Whether the arguments of the Indian Chief above quoted prove their title to their lands, or not, the U. S. cannot deny their title, for they have admitted it by Treaty, and that before the State of Mississippi had a being. Now let us see whether that State, at its sovereign pleasure, can trample those Treaties under foot, and our Government look on without power to help. The Constitution declares that "the Constitution and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby." and again--"The judicial power (of the United States) shall extend to all treaties made."
Let, then, the laws be made, which our Secretary speaks of, and see whether the General Government have no power to prevent their execution.
I will now show by the American Secretary himself, that the United States have the power to interfere, or else the Secretary could not, with any face, give the following pledge. Says he, "Beyond the Mississippi, the Government possess the power [to protect you] and will exercise it. There your enemies will be our enemies." Why will the Government possess the power there? Is it because it will have promised to protect them, and its engagements are obligatory? So has it promised them heretofore. Treaty after Treaty has contained promises express or implied.
The ground on which this pledge is given in this- That beyond the Mississippi, the promised land, to which the Choctaws are invited to go up, is U. States' Territory, and under its laws and jurisdiction, being without the limits of a State, and consequently we can protect them.
Let this proposition be tested. Whenever the Territory beyond the Mississippi, now fast filling up, shall have become settled by a certain number of white persons, they too will have a right to draw around this new habitation of the Indians, certain lines, called "State limits," and have a right to be admitted into the Union as a separate, independent State, just as Mississippi did, and consequently, have the same powers which she how has over the Indians. It cannot be replied that conditions may be imposed on the new proposed State, which will protect them.- Nothing of that. The right to admission is absolute, and is secured by the Constitution, and Congress cannot impose conditions. This question was settled on the admission of Missouri, in which case Congress decided that they could not protect the negroes from slavery, for the right of admission was absolute, and could not be restricted or clogged by any law of Congress, and that Missouri could not be shorn of any of the attributes of sovereignty, exercised by the then existing States.
I confidently assert, then that the United States have the power to protect the Indians, in their present possessions, or the promise of future protection, now solemnly given, is illusory and vain.
If the view which I have taken of this subject places our government
in a dilemma, I cannot help it. Mourn on account of it. I can- I
do- It is humiliating to perceive my country descending from the "vantage ground"
on which she has hitherto stood in view of the world; and deeply afflicting
to my heart to contemplate the distress brought upon a remnant of brave, intelligent
beings, just emerging from superstition, and beginning to taste the sweets of
domestic and civilized life; and more than all, to know the glad sound of the
Gospel...My GOD! avert the blow, and let it not fall on their defenceless [sic]
heads, lest the heathen should learn to curse that God whom we daily supplicate
for blessings to descend upon our children, and our children's children; and
in His wrath He come forth, and of them take vengeance for the blood with which
our guilty land will be stained!