Of Mr. Frelinghuysen, of New Jersey, In Senate U. S.- April 6, 1830
I am indebted to the State of Georgia for a clear and very satisfactory exposition of the nature of Indian treaties, and the obligations that arise from them. It is an authority for positions, which I have had the honor to maintain, of the greater weight, as it proceeds from the highest functionary of her Government. In February, 1825, the Creeks, by a treaty made with the United States ceded all their lands to us within the geographical limits of Georgia, for the use of that State. By an article in the treaty, it was provided that the United States should protect the Indians against the encroachments, hostilities and impositions of the whites, 'c. 'c. until the removal of the Indians should have been accomplished according to the terms of the treaty. The Governor of Georgia, on the 22d day of March, of the same year, issued his proclamation, as 'Governor and Commander in Chief of the Army and Navy of the said State, and of the Militia thereof,' in which, after stating the conclusion of the treaty already mentioned, and the article in it for the protection of the Creeks, the Governor proceeds: 'I have therefore, thought proper to issue this, my proclamation, warning all persons, citizens of Georgia, or others, against trespassing or intruding upon lands occupied by the Indians within the limits of this State, either for the purpose of settlement or otherwise, as every such act will be in direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment by the authorities of the State and of the United States. All good citizens, therefore, pursuing the dictates of good faith, will unite in enforcing the obligations of the treaty as the supreme law.' 'c.
The Senate perceive that this executive injunction founds its requirements, explicitly, upon the faith and authority of the treaty, as the supreme law; and this a treaty made with Indians. Yes, Sir, a treaty with a part of the very Indians now asserted by Georgia to be below the reach of treaties-poor abjects (sic)! with whom it is declared to be ridiculous and idle to speak of treating!
Sir, she cannot recall her proclamation. Give these sacred doctrines their full operation here; let their influence prevail in the eventful issue now opened for our decision; and the Indians, who are involved in it, will be satisfied. They have approached us with no other plan; they urge no other or higher considerations. They point us to the faith of treaties, and implore us by the constitutional obligation of these national compacts, to raise around our ancient allies the effective defences (sic) which we have so often promised to maintain. Carry out these rules of public duty, and the Cherokee delegation, who have been waiting at your doors with anxious interest, will return to their home relieved from the burden that now sinks their spirits and with the grateful conviction that the successors of Washington are still true to his memory.
Mr. President: What could have wrought this entire revolution in opinions, and in three short years? Our relations with the Indians have not changed. Condition and circumstance, claim and obligation, remain precisely the same. And yet, now we hear that these Indians have been for all the time, since Georgia had existence, a component part of her population; within the full scope of her jurisdiction and sovereignty, and subject to the control of her laws!
The People of this country will never acquiesce in such violent constructions. They will read for themselves; and when they shall learn the history of all our intercourse with these nations when they shall perceive the guaranties so often renewed to them, and under what solemn sanctions, the American community will not seek the aids of artificial speculations on the requisite formalities to a technical treaty.- No, Sir. I repeat it: They will judge for themselves, and proclaim in language that the remotest limits of this Republic will understand- 'call these sacred pledges of a nation's faith by what name you please-our word has been given, and we should live and die by our word.'
In the State of Georgia is concluded, and morality bound to stay her hand from invading the lands or the government of the Indians, the State of Mississippi and Alabama are equally and more strongly obliged. They came into the Union after most of the treaties had been made. The former in 1816; These obligations were liens upon the confederacy, and they must take the benefits with the burdens of the Union. They cannot complain of concealment or surprise. These conventions were all public and notorious; and the Indians under their daily view, in actual separate possession, exercising the rights of sovereignty and property.
Moreover, we have heard much of constitutional powers and disabilities in this debate. Sir, I proceed to demonstrate that both Mississippi and Alabama are, by a fundamental inhibition in the constitution of their government, prevented from extending their laws over the Indians.- When Georgia, in 1802, granted to the United States the territory that comprises the greater part of these two states, she made it an express condition of the cession, that the states to be formed of it should conform to all the articles of 'the ordinance for the Government of the territory northwest of the Ohio,' excepting one single article prohibiting involuntary servitude. When these States applied to the General Government to be formed into Territories, this eventful condition of the Georgia cession was remembered by all parties. Mississippi and Alabama in the most deliberate manner agreed to the condition, and assumed the articles of their political condition. Then they afterwards proposed to us to be received into the Federal Union, acts of Congress were duly passed authorizing them respectively to form a constitution and State government for the people within their territories, with this proviso- 'That the same, when formed, shall be republican, and not repugnant to the principles of the ordinance of the 18th July A.D. 1787,' for the territory northwest of the Ohio; and they were afterwards, upon duly certifying to Congress that they had conformed to these principles, and engrafted them into their constitution, admitted into the Republic. The third article of this ordinance I have already read and considered, and will only add, that human wisdom and skill could not have devised a more effectual safeguard for the Indian tribes, than are now incorporated into the laws and constitution of the States if Mississippi and Alabama. It would have been well in these States to have reviewed their own origin; to have examined the sources of their power before they, rashly, ' in disregard of principles that are essential to their political existence, usurped dominion over a community of men as perfectly independent of them as they are in Mexico. And shall we, Sir, quietly submit to the breach of conditions that we tendered as the indispensable terms of their admission; that were fairly propounded, and freely and fully accepted? Why, Sir, it appears to me that the fulfilment (sic) of solemn contracts, the good faith of public treaties, the fundamental provisions of State constitutions are to be regarded as matters of very trifling obligation, when they are all to be broken through to reach a feeble and unoffending ally. With a man of truth and honesty, such high considerations as address us, would supersede the occasion for argument; and how can we evade them without deep dishonor?
I have complained of the legislation of Georgia. I will mow refer the Senate to the law of that State passed on the 19th December, A. D. 1829, that the complaint may be justified. The title of the law would suffice for such purpose without looking further into its sections. After stating its object of adding the territory in the occupancy of the Cherokee Nation of Indians to the adjacent counties of Georgia, another distinct office of this oppressive edict of arbitrary power is avowed to be, ' to annul all laws and ordinances made by the Cherokee Nation of Indians.' And, Sir, the act does annul them effectually. For the seventh section enacts, 'that after the first day of June next, all laws, ordinances, orders and regulation of any kind whatever, made, passed, or enacted by the Cherokee Indians, either in general Council, or in any other way whatever, or by any authority whatever, of said tribe, be, and the same is hereby declared to be null and void, and of no effect, as if the same had never existed.' Sir, here we find a whole people outlawed- laws, customs, rules, government, all, by one short clause, abrogated, and declared to be void as if they never had been. History furnishes no example of such high-handed usurpation- the dismemberment and partition of Poland was a deed of humane legislation, compared with this. The succeeding clauses are no less offensive-they provide that 'if any person shall prevent, by threats, menaces, or other means, or endeavor to prevent any Indian of said nation, from emigrating, or enrolling as emigrant, he shall be liable to indictment and confinement in the common goal, or at hard labor in the Penitentiary, not exceeding four years at the discretion of the Court; and if any person shall deter or offer to deter any Indian, head man, chief, or warrior of said nation, from selling or ceding to the United States, for the use of Georgia, the whole or any part of said territory, or prevent, or offer to prevent, any such persons from meeting in council or treaty any commissioner or commissioners on the part of the United States, for any purpose whatever, 'he shall be guilty of a high misdemeanor, and liable, on conviction, to confinement at hard labor in the Penitentiary for not less than
four, nor longer than six years, at the discretion of the Court.' It is a crime in Georgia for a man to prevent the sale of his country-a crime to warn a chief or head man, that the agents of the United States are instructed 'to move upon him in the line of his prejudices', that they are coming to bribe him to meet in treaty with the commissioner. By the way, Sir, it seems these treaties are very lawful, when made for the use of Georgia.
It is not surprising that our agents advertised the War Department, that if the General Government refused to interfere, and the Indians were left to the law of the States, they would soon exchange their land and remove. To compel by harsh and cruel penalties such exchange, is the broad purpose of this act of Georgia, and nothing is wanting to fill up the picture of a disgraceful system, but to permit the bill before us to pass, without amendment or proviso. Then it will all seem fair on our statute books. It legislates for none but those who may choose to remove-while we know that grinding, heart breaking exactions are set in operation elsewhere to drive them to such a choice. By the modification I have submitted, I beg for the Indian the poor privilege of a free exercise of his own will. But the law of Georgia is not yet satisfied. The last section declares, 'that no Indian, or descendant of any Indian, residing within the Creek or Cherokee Nations of Indians, shall be deemed a competent witness in any Court of this State, to which a white person may be a party, except such white person resides within the said nation.' It did not suffice to rob these people of the last vestige of their own political rights and liberties- the work was not complete, until they were shut out of the protection of Georgia laws. For, Sir, after the first day of June next, a gang of lawless white men may break into the Cherokee country, plunder their habitation, murder the mother, with the children, and all in sight of the wretched husband and father-and no law of Georgia will reach the atrocity. It is vain to tell us, Sir, that murder may be traced by circumstantial probabilities. The charge against this State is--you have by force and violence stripped these people of the protection of their government, and now refuse to cast over them the shield of your own. The outrage of the deed is, that you leave the poor Indian helpless and defenceless (sic), and in this cruel way hope to banish him from his home. Sir, if this law be enforced, I do religiously believe that it will awaken tones of feeling that will go up to God- and call down the thunders of his wrath.
end, however, is to justify the means. 'The removal of the Indian tribes to the west of the Mississippi is demanded by the dictates of humanity.' This is a word of conciliating import. But it often makes its way to the heart under very doubtful titles, and its present claims deserve to be rigidly questioned. Who urges this plea? They who covet the Indian lands--who wish to rid themselves of a neighbor that they despise, and whose State pride is enlisted in rounding off their territories. But another matter is worthy of a serious thought. Is there such a clause in our covenants with the Indian, that when we shall deem it best for him; on the whole, we may break our engagements and leave him to his persecutors? Notwithstanding our adversaries are not entitled to the use of such humane suggestions, yet we do not shrink from an investigation of this pretence. It will be found as void of support in fact, as the other assumptions are of principle.
It is alleged that the Indians cannot flourish in the neighborhood of a white population--that whole tribes have disappeared under the influence of his propinquity. As an abstract proposition, it implies reproach somewhere. Our virtues certainly have not such deadly and depopulating power. It must, then, be our vices that posseses (sic) these destructive energies-and shall we commit injustice, and put in as our plea for it, that our intercourse with the Indians has been so demoralizing that we must drive them from it, to save them? True, Sir, many tribes have melted away-they have sunk lower and lower-and what people could rise from a condition to which policy, selfishness, and cupidity, conspired to depress them?
Sir, had we devoted the same care to elevate their moral condition, that we had to degrade them, the removal of the Indians would not now seek an apology in the suggestions of humanity. But I waive this, and as to the matter of fact, how stands the account? Wherever a fair experiment has been made, the Indians have readily yielded to the influences of moral cultivation. Yes, Sir, they flourish under this culture, and rise in the scale of being. They have shown themselves to be susceptible of improvement, and the ferocious feeling and habits of the savage are soothed and reformed by the mild charities of religion. They can very soon be taught to understand and appreciate the blessings of civilization and regular government. And I have the opinions of some of our most enlighted (sic) statesmen to sustain me. Mr. Jefferson, nearly thirty years ago, congratulates his fellow citizens upon the hopeful indications furnished by the laudable efforts of the government to meliorate the condition of those he was pleased to denominate 'our Indian neighbors.' In his message to Congress on the 8th of December, 1801, he states, 'among our Indian neighbors, also, a spirit of peace and friendship generally prevails; and I am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry, and of the household arts, have not been without success. That they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence over the precarious resources of hunting and fishing. And already are we able to announce that, instead of that constant diminution of numbers produced by their wants some of them begin to experience an increase of population.' Upon the authority of this great statesman, I can direct our government to a much more effective, as well as more just honorable remedy for the evils that afflict these tribes, than their proposed removal into the wild uncultivated regions of the western forests. In a message to Congress on the 17th of October, 1803, Mr. Jefferson remarks,'with many of the other tribes, improvements agriculture and household manufacture are advancing, and with all our peace and friendship are established on grounds much firmer than heretofore.' In his message of the 2d December, 1806, there is a paragraph devoted to this subject deserving of our most respectful consideration. The friends of Indian rights could not desire the aid of better sintiments (sic) than Mr. Jefferson inculcated in that part of the message where he says 'we continue to receive proofs of the growing attachment of our Indian neighbors; and of their disposition to place all their interests under the patronage of the United States. These dispositions are inspired by their confidence in our justice, and in the sincere concern we feel for their welfare. And as long as we discharge these high and honorable functions with the integrity and good faith which alone can entitle us to their continuance, we may expect to reap the just reward in their peace and friendship.' Again, in November, 1808, he informs the Congress that 'with our Indian neighbors the public peace has been steadily maintained; and generally from a conviction that we consider them as a part of ourselves, and cherish with sincerity their rights and interests the attachment of the Indian tribes is gaining strength daily, is extending from the nearer to the more remote, and will amply requite us for the justice and friendship practised (sic) towards them. Husbandry and household manufacture are advancing among them--more rapidly with the Southern than the Northern tribes from circumstances of soil and climate.'
Mr. Madison in his message of November, 1809, likewise bears his public testimony to the gradual improvement of the Indians. 'With our Indian neighbors,' he remarks, 'the just and benevolent system continued toward them, has also preserved peace, and is more and more advancing habits favorable to their civilization and happiness.' I will detain the Senate with but one more testimonial, from another venerable Chief Magistrate. Mr. Monroe, as lately as 1824, in his message, with great satisfaction informed the Congress that the Indians were 'making steady advances in civilization and the improvement of their condition.' 'Many of the tribes,' he continues, 'have already made great progress in the arts of civilized life. This desirable result has been brought about by the humane and persevering policy of the Government, and particularly by means of the appropriation for the civilization of the Indians. There have been established, under the provisions of this act, thirty two schools containing nine hundred and sixteen scholars, who are well instructed in several branches of literature, and likewise in agriculture and ordinary arts of life.'
Now, Sir, when we consider the large space which these illustrious men have filled in our councils, and the perfect confidence that is due to their official statements, is it not astonishing to hear it gravely maintained that the Indians are retrograding in their condition and character--that all our public anxieties and cares bestowed upon them have been utterly fruitless, and that for very pity's sake we must get rid of them, or they will perish on our hands? Sir, I believe that the confidence of the Senate has been abused by some of the letter writers who give us such sad accounts of Indian wretchedness. I rejoice that we may safely repose upon the statements contained in the letters of Messrs. J. L. Allen, R. M. Livingston. Rev. Cyrus Kingsbury, and the Rev. Samuel A. Worcester. The character of these witnesses is without reproach, and their satisfactory certificates of the improvement of the tribes continue and confirm the history furnished to us in the several messages from which I have just read extracts.
It is further maintained 'that one of the greatest evils to which the Indians are exposed, is that incessant pressure of population, that forces them from seat to seat, without allowing time for moral and intellectual improvement.' Sir, this is the very reason-the deep, cogent reason which I present to the Senate, now to raise the barrier against the pressure of population, and with all the authority of this nation, command the urging tide 'thus far and no farther.' Let us save them now, or we never shall. For is it not clear as the sunbeam, Sir, that a removal will aggravate their woes? If the tide is nearly irresistible at this time, when a few more years shall fill the regions beyond the Arkansas with many more millions of enterprising white men, will not an increase impulse be given, that shall sweep the red men away into the barren prairies, or the Pacific of the West?- Such; I fear, will be their doom.
If these constant removals are so affictive (sic), and allow no time for moral improvement-if this be the cause why the attempts at Indian reformation are alleged to have been so unavailing- do not the dictates of experience then plead most powerfully with us, to drive them no further--to grant them an abiding place, when these moral causes may have a fair and uninterrupted operation in moulding (sic) and refining the Indian character? And, Sir, weigh a moment the considerations that address us on behalf of the Cherokees, especially. Prompted and encouraged by our counsels, they have in good earnest resolved to become men, rational, educated, Christian men; and they have succeeded beyond our most sanguine hopes. They have established a regular constitution of civil government, republican in its principles. Wise and beneficent laws are enacted. The people acknowledge their authority, and feel their obligation. A printing press, conducted by one of the nation, circulates a weekly newspaper, printed partly in English, and partly in the Cherokee language. Schools flourish in many of the settlements. Christian temples, to the God of the Bible, are frequented by respectful, devout, and many sincere worshippers. God, as we believe, has many people among them, whom he regards the 'apple of his eye.' They have become better neighbors to Georgia. She made no complaints during the lapse of fifty years, when the tribes were a horde of ruthless, licentious and drunken savages; when no law controlled them, when the only judge was their will, and their avenger the tomahawk.
Then Georgia could make treaties with them, and acknowledge them as nations; and in conventions trace boundary lines, and respect the land-marks of her neighbor; and now, when they begin to reap the fruits of all the paternal instructions, so repeatedly and earnestly delivered to them by Presidents- when the Cherokee has learned to respect the rights of the white man, and sacredly to regard the obligations of truth and conscience--is this the time, Sir, to break up this peaceful community, to put out their council fires, to annul their laws and customs, to crush the rising hopes of their youth, and to drive the desponding and discouraged Indian to despair? Let it be called a sickly humanity--every freeman in the land, that has one spark of spirit of his fa-fathers (sic), will feel and denounce it to be an unparalleled stretch of cruel injustice. And if the deed be done, Sir, how it is regarded in Heaven, will, sooner or later, be known on Earth; for this is the judgment place of public sins. And all these ties are to be broken asunder, for a State that was silent and acquiesced in the relations of the Indians to our present government--that pretended to no right of direct interference whilst these tribes were really dangerous; when their ferocious incursions justly disturbed the tranquility of the fireside, and waked the 'sleep of the cradle;' for a State that seeks it now against an unoffending neighbor, which implores her by all that is dear in the graves of her fathers, in the traditions of by gone ages; that beseeches her by the ties of nature, of home and of country, to let her live unmolested, and die near the dust of her kindred!
Sir, our fears have been addressed in behalf of those States whose legislation we resist: and it is enquired with solicitude, would you urge us to arms with Georgia? No, Sir. This tremendous alternative will not be necessary. Let the General Government come out, as it should, with decided and temperate firmness, and officially announce to Georgia, and the other States, that if the Indian tribes choose to remain they will be protected against all interference and encroachment; and such is my confidence in the sense of justice, in the respect for law, prevailing in the great body of this portion of our fellow citizens, that I believe they would submit to the authority of the nation. I can expect no other issue. But if the General Government be urged to the crisis, never to be anticipated, of appealing to the last resort of her powers; and when reason, argument, and persuasion fail, to raise her strong arms to repress the violation of the supreme law of the land, I ask, is it not in her bond, Sir? Is her guaranty a rope of sand?--This effective weapon has often been employed to chastise the poor Indians, sometimes with dreadful vengeance I fear, and shall not their protection avail to draw it from the scabbard? Permit me to refer the Senate to the views of Mr. Jefferson, directly connected with this delicate, yet sacred duty of protection. In 1791, when he was Secretary of State, there were some symptoms of collision on the Indian subject. This induced the letter from him to General Knox, then our Secretary of War, a part of which I will read. 'I am of opinion, that Government should firmly maintain this ground: that the Indians have a right to the occupation of their lands, independent of the States within whose chartered limits they happen to be; that until they cede them by treaty, or other transaction equivalent to a treaty, no act of a State can give a right to such lands: that neither under the present constitution, nor the ancient confederation, had any State or persons a right to treat with the Indians, without the consent of the General Government; that that consent has never been given by any treaty for the cession of the lands in question; that the Government is determined to exert all its energy for the patronage and protection of the rights of the Indians and the preservation of peace between the United States and them; and that if any settlements are made on lands not ceded by them, without the previous consent of the United States, the Government will think itself bound, not only to declare to the Indians that such settlements are without the authority or protection of the United States, but to remove them also by public force.'
Mr Jefferson seems to have been disturbed by no morbid sensibilities. He speak out as became a determined statesman. We can trace in this document the same spirit which shed its influence on a more eventful paper-the declaration of our rights, and of our purpose to maintain and defend them. He looked right onward, in the broad path of public duty; and if, in his way, he met the terrors of State collision and conflict, he was in no degree intimidated. The faith of treaties was his guide; and he would not flinch in his purposes, nor surrender the Indians to State encroachments. Let such decided policy go forth in the majesty of our laws now, and Sir, Georgia will yield. She will never encounter the responsibilities or the horrors of a civil war. But if she should, no stains of blood will be on our skirts--on herself the guilt will abide forver (sic).
Mr. President, if we abandon these aboriginal proprietors of our soil--these early allies and adopted children of our forefathers, how shall we justify it to our country? to all the glory of the past, and the promise of the future? her good name is worth all else besides that contributes to her greatness. And, as I regard this crisis in her history, the time has come when this unbought treasure shall be plucked from dishonor, or abandoned to reproach.
How shall we justify this trespass to ourselves? Sir, we may deride it, and laugh it to scorn now; but the occasion will meet every man, when he must look inward, and make honest inquisition there. Let us beware how, by oppressive encroachments upon the sacred privileges of our Indian neighbors, we minister to the agonies of future remorse.
I have in my humble measure, attempted to discharge a public and most solemn duty towards an interesting portion of my fellow men. Should it prove to have been as fruitless as I know it to be below the weight of their claims yet even then, Sir, it will have its consolations. Defeat in such a cause is far above the triumphs of unrighteous power and in the language of an eloquent writer-'I had rather receive the blessing of one poor Cherokee, as he casts his last look back upon his country, for having, though in vain attempted to prevent his banishment, than to sleep beneath the marble of all the Caesars.'