SPEECH OF MR. EVERETT.
Of Massachusetts, in the House of Representatives, on the 14th and 21st of February, 1831. On the Execution of the Laws and Treaties in favor of the Indian Tribes.
[On Monday, 7th February, 1831, Mr. E. Everett presented to the House of Representatives the petition of sundry citizens of Massachusetts, praying that the Indian tribes may be protected in their rights secured to them by the laws of the United States, and the treaties subsisting between the United States and the said tribes. In presenting this memorial, Mr. Everett observed, that he had long felt it to be the duty of the House to consider the all important subject of this memorial. He should himself, by way of resolution, have called the attention of the House to the subject, and no other member expressed an intention of doing so, if it had been possible, under the rules of the House to move a resolution. But it was known to the Chair, that for several weeks past, there had not been a moment when it was in order to move a resolution.* A petition from a very respectable community in the State which he had the honor, in part, to represent, had been placed in his hands. By the rules of the House, a petition cannot be debated on the day on which it is presented, but must lie on the table one day. As petitions are received only one day of the week - on Mondays- Mr. E. observed that the memorial which he presented must under these rules, lie on the table till that day, and then come up as the unfinished business of petitions. He begged leave, therefore in presenting this petition, to give notice, that, when it should come up, on Monday next, he should feel it his duty to ask the attention of the House to the very important question of protecting the Indian Tribes, in the possessions and rights secured to them by treaty and laws of the United States.
On Monday 14th of February, the subject, according to this notice, came up. A motion was submitted by Mr. Everett, that the petition should be referred to the Committee on Indian Affairs, with instructions to report a bill making provision for executing the laws relating to the intercourse of citizens of the United States with the Indian Tribes; and also for the faithful observance of the treaties between the United States and the said tribes.
This motion was supported by Mr. Everett, in a speech delivered on the 14th and 21st of February, in substance as follows:]
Mr. Speaker. In presenting this subject last week to the House, I observed, that it was with regret that I found myself obliged to bring it forward in a manner, strictly parliamentary indeed, but somewhat unusual. I should have preferred to submit this great subject to the consideration of the House by the more usual course of a resolution . I have had a resolution prepared for that purpose and lying in my desk for several weeks, but the Chair knows that there has not been a moment for several weeks, when a resolution could be offered but by the unanimous consent of the House. Such consent I could not ask on such a subject. I should have been better pleased to meet the subject on a report from the Indian Committee, to whom in connexion with very numerous memorials from various parts of the country with the Presidents Message, and with the petitions of the Creek and Cherokee Indians, it has been referred. No report, however, has proceeded from that committee and to intimation has been given that any is to be expected.
In this state of things, urged by my sense of duty, admonished by several expressions of public sentiment committed to my charge by the people I represent, and looking upon the subject as one of great, of paramount--aye, sir, of most painful importance-a subject eminently requiring the interposition of this House-I have felt myself constrained (in forbearance of others much better qualified to take this step) to make this effort to bring it under the consideration of the representatives of this People.
I should think, sir, that a positive decision of this question by Congress would be highly desirable to the friends of the Administration. They cannot, I should think, wish to leave with the Executive the responsibility of sitting still and witnessing the violation of a very large number of treaties and compacts, and of the clearest provisions of law. No man surely can pretend that such a policy can be within the competence of the Executive; and if, for reasons of necessity, or reasons of State, or any other reasons, the treaties with the Indians are to be annulled, and the laws touching our intercourse with them converted into a dead letter, it surely cannot require an argument to prove, that Congress is the only power by which this can be done with any show of rightful authority.
I cannot disguise my impression, that it is the greatest question which ever came before Congress, short of the question of peace and war. It concerns not an individual, but entire communities of men, whose fate is wholly in our hands, and concerns them not to the extent, of affecting their interests, more or less favorably within narrow limits. As I regard it, it is a question of inflicting the pains of banishment from their native land on seventy or eighty thousand human-beings, the greater part of whom are fixed and attached to their homes in the same way that we are. We have lately seen this House in attendance, week after week, at the bar of the other House, while engaged in solemn trial of one of our own functionaries, for having issued an order to deprive a citizen of his liberty for twenty four hours. It is a most extraordinary and astonishing fact, that the policy of the United States toward the Indians--a policy coeval with the Revolution, and sanctioned in the most solemn manner on innumerable occasions--is undergoing a radical change,which, I am persuaded, will prove as destructive to the welfare and lives of its subjects as it will to their rights; and that neither this House nor the other House, has ever, even by resolution, passed directly upon the question.
But it is not merely a question of the welfare of these dependent beings, nor yet of the honor and faith of the country which are pledged to them, it is a question of the Union, itself. What is the Union? Not a mere abstraction; not a word; not a form of government: it is the undisputed paramount operation, through all the States, of those functions with which the Government is clothed by the Constitution. When that operation is resisted, the Union itself is in fact dissolved. I will not now dwell on this idea; but the recent transaction in Georgia have been already hailed in the neighboring British provinces as the commencement of that convulsion of these United States, to which the friends of liberty throughout the world look forward with apprehension, as a fatal blow to their cause.
If any further apology were needed for bringing this matter before the House, it might be the fact that it has been frequently referred to us. It has formed a prominent topic in the two annual communications of the Chief Magistrate. Numerous memorials on both sides of the question have presented it to us; reports in both Houses have discussed it; but owing to some strange fatality it has never been plainly and decidedly met.
The Secretary of War tells us that a new era has within a few years arisen in relation to our Indian affairs. He does not indicate precisely what marks the new era; but in one respect there has unquestionably arisen a new era in this department, that of substituting Executive decision for Congressional enactment. Formerly the Executive only carried into effect our laws and treaties made by the treaty making branch of the Government. Now the President, 1st permits the States to annul the treaties, and to proceed on their declared want of validity; and, 2d. annuls the laws himself, and permits his secretary to come down to Congress with an argument to prove that a law substantially coeval with the Government is unconstitutional. I am willing to receive the Secretary's argument for what it is worth; but really, sir, I have studied the Constitution, unsuccessfully, if the mere opinion of a Secretary, with or without an argument, renders a law unconstitutional, and makes it cease to be obligatory. But to this I shall return, repeating only now, that the assumption of these principles in our Indian affairs does, indeed constitute a new era.
Sir, I know the delicacy of this subject. I approach it with reluctance and pain under the most imperious sense of duty. I would gladly put it by, could I have justified myself in so doing. I know, by past experience, the odium I am to incur. I know that, humble as I am, the denunciation of hundreds of presses throughout the country await me. I have seen within the week in a paper published at this place, and which has been made the channel of the most confidential communications between the President and the People; I have seen the course of the minority of this House who voted on the Indian Bill last year--a minority comprising some of the most respectable friends of the President, and amounting to very nearly one half of the House-ascribed to vile faction.
But disagreeable as the consequence may be, to one who lives strife as little as I! I cannot keep silence, when unconstitutional, by those executive officers who have no other duty in reference of the laws, but to enforce them, when I see treaties violated by States who are parties to them; treaties sanctioned by all the formes of the constitution and ratified by the Senators representing the very States foremost in the violation. I cannot keep silence when I see the Constitution invaded; the honor of the country tarnished; the Union impaired. If my whole course during the six years that I have been honored with a seat on this floor, will not protect me in the judgment of others from the imputation of vile and factious motives; I shall have at least the consciousness in my own bosom, that a sense of public duty, and that alone, has impelled me to the course I have taken.
Sir, the Secretary says a new era has arisen in our Indian affairs. This is true. Up to the year 1828, the course of proceeding in our Indian affairs is well known at least in reference to all the tribes, whose rights are now in controversy. The United States had negotiated treaties with all the Southwestern tribes. Our relations with them and the boundary between them and us were regulated by treaty, and by the intercourse law framed in pursuance of the same policy. A limited and qualified sovereignty, sufficient to enable them to contract these treaty obligations, was conceded to the tribes. No state had pretended to extend her laws over either of these tribes till the year 1828. To show the various views entertained of this subject, I will cite several authorities which abundantly sustained me in this position. The distinguished individuals whom I quote, and the present chief magistrate at the head of them, took views somewhat different from each other, but none of them, I believe, intimated, that the separate States possess the right now claimed.
In 1821, the Creek Path Indians being dissatisfied with the conduct of their brethren of the upper towns, applied to General Jackson, then Major General of the Southern division, requesting him to use his influence with the General Government to procure for the said Creek Path Indians an inalienable reservation of a part of their lands on consideration of selling their proportionate share of the common lands of the Nation.
General Jackson was in favor of this project, and wrote to Mr. Calhoun, then Secretary of War, as follows:
'I do believe, in a political point of view, as well as in justice to these people, their prayer ought to be noticed. It is inviting to Congress to take up the subject and exercise its power under the Hopewell treaty, of regulating all the Indian concerns as it pleases. This is a precedent much wanted, that the absurdity in politics may cease of an independent sovereign nation holding treaties with people living within its territorial limits, acknowledging its sovereignty and laws, and who, although not citizens, cannot be viewed as aliens, but as real subjects of the United States.'--Here the right of legislating for the Indians is claimed not for the States, but for the United States; and this under the Treaty of Hopewell, a treaty negotiated before the adoption of the Federal Constitution, and containing the amplest guaranties of the rights of the Cherokees.
In treating with the Cherokee Indians in 1828, Messrs. Campbell and Meriwether citizens of Georgia, animated by a strong zeal for the acquisition of Indian lands, use this language: 'The sovereignty of the country which you occupy is in the United States alone; no State or foreign power can enter into a compact with you. These privileges have passed away, and your intercourse is restricted exclusively to the United States.'
In the year 1824, March 10th the Cherokees are spoken of in the following manner, in a letter addressed by the Senators and Representatives of Georgia, to the Secretary of War;
If the Cherokee are 'to be viewed as other Indians, as persons suffered to reside within the territorial limits of the United States; and subject to every restraint, which the policy and power of the General Government require to be imposed on them, for the interest of the Union, the interest of the particular States and their own preservation, it is necessary that these misguided men should be taught by the General Government, that there is not alternative between their removal beyond the limits of the State of Georgia and their extinction.'
In 1824, Judge White, now the distinguished Senator from Tennessee, gave an opinion, in which he expressed himself as follows:
' Under the parental care of the Federal Government the Cherokees have been in a good degree reclaimed from their savage state. Under their patronage, they have become enlightened; they have acquired a taste for property itself. There must be, laws to protect it, as well as to protect those who own it. By what community ought these laws to be enacted: Laws there have always been, and laws there must be, emenating from some power capable of enacting them. Where is that power? It must be in Congress, or in the Cherokee. Congress has never exercised it, the Cherokees always have. I have never heard that their power was doubted.'
Governor Troup, in 1825, March 35th, issued a Proclamation, from which the following is an extract.
'Whereas it is provided in said treaty, that the United States shall protect the Indians against the encroachments, hostilities, and impositions of the whites, so that they suffer no interruption, molestation, or injury in their persons, goods, effects, their dwellings, or the lands they occupy, until their removal shall have been accomplished according to the terms of the treaty:
'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 of 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 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.'
Governor Troup, being exceedingly desirous to hasten the survey of the lands; acquired by the treaty of the Indian Springs, asked permission to survey them; of General McIntosh, the Chief of the emigrating party, as a necessary preliminary.
In 1826, a Senator from Mississippi, now deceased, (Mr. Reed) disclaimed any right on the part of the [See 4th PAGE] State to extend her jurisdiction over the Indians. 'At the last session, said he, of the Legislature of Mississippi, a proposition was made to extend the civil power of their courts to their own citizens, who had contracted debts within the State, and had fled to this savage sanctuary. The matter was debated many days, and it was at last decided that there existed no power in the State, to extend its laws in the manner sought by the proposition.'
These authorities, I think, will abundantly prove that the claim of the Southern States to exercise jurisdiction over tribes, with whom there existed treaties, forms a new era. whether it be that to which the Secretary of War alludes, I pretend not to decide.
While the Secretary of War announces this new era, the President in his Message at the opening of the Session informed us, that 'the benevolent policy of the Government, steadily pursued for nearly thirty years, in relation to the removal of the Indians beyond the white settlements, is approaching to a happy consummation.'
This statement appears to me of variance with that, which was made in the annual message of the last year. In that document we were told, that it has long been the policy of Government to introduce among the Indians the arts of civilization, in the hope of gradually reclaiming them from a wandering state. This is certainly a benevolent policy; and this is the policy, which has been steadily pursued for nearly thirty years. But last year, the President added, 'this policy has, however, been coupled with another, wholly incompatible with its success. Professing a desire to civilize and settle them, we have, at the same time, lost no opportunity to purchase their lands, and thrust them further into the wilderness. By this means, they have not only been kept in a wandering state, but have been led to look upon us unjust and indifferent to their fate. Thus, though lavish in its expenditures on the subject, Government has constantly defeated its own policy.'
Last year the benevolent policy of settling and civilizing them had been thwarted by another, that of removal to the West, declared to be incompatible with its success. This year the removal to the West is declared to be the benevolent policy, which has been steadily pursued. In my judgment, the view taken in the message of last year is the sounder.
But the policy of removal has, I grant, been pursued steadily for thirty years, but never in the same manner as now. It was never thought of, that all the treaties and laws of the United States respecting the Indians could be annulled, and the laws of the States extended over them; laws of such a character that it is admitted, nay urged, that they cannot live under them. The policy of removal has been pursued by treaty, negotiated by persuasion, urgency, if gentlemen please, with importunity. But the compulsion of State legislation and of the withdrawal of the protection of the United States was never before heard of. If the President means that the policy of removal under this compulsion is thirty years old, I do not know a fact, on which his proposition can stand for a moment. However pursued, the policy of removal had been attended with limited success. Vast tracts of land had indeed been acquired of the Southwestern tribes, but chiefly by bringing their settlements within narrower limits. Between the years of 1809 and 1810, about one-third of the Cherokees went over to Arkansas, and the hardships and sufferings encountered by them were a chief cause why their brethren, the residue of the tribe, resisted every inducement held out to persuade them also to emigrate.- The Choctaws, by the Treaty of Doak's Stand, acquired a large tract of country between the Red River and the Canadian, but would not in any considerable numbers emigrate to it. In 1826, a part of the Creeks were forced by the convulsions of that tribe to emigrate, under the treaty of that year. In 1828 the Choctaws and Chickasaws sent a deputation to explore the country west of Arkansas, which returned dissatisfied with its appearance.
While the policy of removal was going on with this limited success, that of civilization, the truly benevolent policy, was much more prosperous. The attempt to settle, to civilize and to christianize some of these tribes succeeded beyond all example. If the accounts of their previous state of barbarism are not exaggerated, the annals of the world do not, to my knowledge, present another instance of improvement so rapid, within a single generation; unless it be that which has been effected, by a similar agency, in the Sandwich Islands within the last ten years.
During all the time that these two processes were going on, that of removal (declared last year by the President to be inconsistent with civilizing them) with partial success; and that of settling and improving their condition, on this side of the Mississippi, in which the success had been rapid and signal, no attempt was made to encroach upon their limited independence. The right of the United States to treat with them was not questioned; the States never attempted to legislate over them; and the possessions and rights guarantied to them by numerous treaties were considered by them, and by us, as safe beneath the protection of the National Faith. But at length, under late administration, of the General Government, the south-western States, taking advantage of political weakness of that administration, seemed determined to adventure the experiment, how fast they could go, to effect by a new course of State legislation, a revolution in the Indian policy of the country.
Georgia led the way. In 1828 she passed a summary law to take effect prospectively, extending her jurisdiction civil and criminal over the Indian tribes within her limits. In 1829, this law, with more specific provisions, was re-enacted to take effect on the first day of June, 1830. This example of Georgia was imitated by Alabama and Mississippi. By these State laws, the organization previously existing in the Indian tribes was declared unlawful and was annulled. It was made criminal to exercise any function of Government under authority derived from the tribes. The political existence of these communities was accordingly dissolved, and their members declared citizens or subjects of the states. What a contrast, in two or three years! In 1826, after many day's debate, the legislature of Mississippi decided, that it had no right to pass a law to pursue its own citizens, being fugitive debtors, into the Indian country. In 1829, the same State extends all its laws over the Choctaws, abrogates their Government and denounces the punishment of imprisonment on any person who should exercise any office under the authority of the tribe.
The Indians, as natural, looked to the Government of the United States for protection. It was the quarter whence they had a right to expect it; where, as I think, they ought to have found it. They asked to be protected in the rights and possession as guarantied to them by numerous treaties, and demanded the execution, in their favor, of the laws of the United States governing the intercourse of our citizens with the Indian tribes. They came first to the President, deeming, and rightly, that it was his duty to afford them this protection. They knew him to be the supreme Executive Officer of the Government; that as such he and but one constitutional duty of executing them. The President refused to afford the protection demanded. He informed them, that he had no power, in his view of the rights of the States, to prevent their extending their laws over the Indians; and the secretary of War, in one of his communications to them, adds the remark, that the President had as little inclination as power to do so.
When this decision of the President was taken, does not certainly appear. On the 23d day of March, 1829, he informed a Delegation of Creek Indians, that, if they remained, they must become subject to the law of Alabama. On the 11th of April, the superintendent of the Bureau of Indian Affairs, by direction of the secretary of War, stated to the Cherokee Delegation, 'That the Secretary of War, is not now prepared to decide the question involved in the act of the Legislature of Georgia, to which you refer, in which provision is made for extending the laws of Georgia over your people, after the 1st June, 1830. It is a question which will doubtless be the subject of Congressional inquiry, and what is proper in regard to it will no doubt be ordered by that body.'
'In regard to the act of Georgia, no remedy exists short of one which Congress alone can apply.'
On the 18th of the same mouth, a letter of the Secretary of War, to the same delegation, tells them, in the most positive terms, that the Indians must submit to the State laws.
On the 14th October, the Secretary, writing to Governor Forsyth, uses this language: 'At early period, therefore, when this question arose, the Cherokees were given distinctly to understand that it was not within the competency or power of the Executive to call in question the right of Georgia to assert her own authority within her own limits, and the President has been gratified to witness the extent to which a principle so reasonable in itself, so vitally important to State Sovereignty, has received the approbation of his fellow citizens. This oft asserted and denied right being settled, on the side of the State, to the extent that Executive interference could go, it was expected and hoped that a little longer continuance of that forbearance which Georgia has so long indulged, was all that was wanted to assure to her the purposes and objects she had before her; and after a manner, too, to which philanthropy could take not exception.'
Such was the fate of the question which was to be the subject of Congressional inquiry. In what way that popular sanction had been given, which the President appears to have taken in lieu of any legislative decision of this question, does not appear.
At the ensuing session of Congress a memorial was presented to this House, signed by three thousand and eighty five individuals of the Cherokee tribe. Another memorial was laid upon our table from the Creeks. The subject also was presented to us in the annual message of the President, disclosing a state of facts which seemed to inquire, as well as to invite the decisive action of Congress. Finally, the public mind was extensively awakened. Very numerous memorials, on the subject of the revolution which was going on in our Indian policy, were sent in to Congress. Some of these(and of this character was the first presented) approved the change: by far the greater condemned it.
In this way the question of the right of the State to extend her laws over Indian tribes, in contravention of treaties and the laws of the United States, was brought before Congress in the fullest and amplest manner. It was not, however, directly met. The President had, in the recess of Congress, declared that he could not and would not enforce the treaties and laws. The Secretary of War had almost sneered at the idea, that the Indians could possess rights under a treaty forty years old; as if the validity of a treaty were impaired by the length of time its provisions had been in force. But the treaties were still preserved in our archives. The intercourse law founded upon them still stood unrepealed on the Statute Book; and it appears to me that the proper way in which this question was to be met, would have been a proposition to repeal the laws and abrogate the treaties.
In my judgment there was an error in the first step taken by the President. He decided a question which he had no constitutional competency to decide. When the first movement was made by the States, he should have interposed to maintain the treaties and enforce the laws, and have referred the subject to Congress. What other power has the Executive over a treaty or a law but to enforce it? The principle assumed by the President and by the Secretary is, that whenever the Executive thinks a law unconstitutional, he may forbear to execute it. Now, how will this operate on other questions? Suppose Mr. Adams had thought the compact of 1802 unconstitutional, (as it was held to be in this debate last winter by a Senator from Alabama) could he have refused to enforce it; could he have forborne to expend an appropriation granted to carry it into effect? The President has plainly intimated, that the Bank of the United States is unconstitutional. Is he thereby authorized to put it out of the law? A very respectable portion of the community regards the tariff as unconstitutional, and as such null and void? The intercourse law was passed as it stands in 1802; the substance of it was enacted in 1791, and the Secretary of War, with full concurrence of the President, lays his hand on this law, which is forty years old, tells us it is unconstitutional, as such not obligatory.
Let us but consider the extravagance of this doctrine. The Constitution gives to the President a veto, if he may annul any law and all the laws in the statute book, on the simple opinion that they are unconstitutional?
But what, it may be asked, is the President to do; how is he to proceed with an unconstitutional law? I answer this question, by asking another, how is he authorized to arrive at the conclusion, that a law is unconstitutional? Is he created by the Constitution, a functionary to pass on the unconstitutionality of laws? I can find no such power given him in the constitution.
It is one thing for a law to be ascertained and declared unconstitutional, by the competent tribunal, and another thing for it to be thought unconstitutional, by any citizen or officer called on to obey or to enforce it.
The citizen is not found to obey an unconstitutional law; for it is no law. But if he undertakes to disobey a law because in his private judgment, it is unconstitutional; it is at his risk and peril; and it will not probably be long, before some process of law will teach him that he is not authorized finally to adjudicate such a question. An Executive officer, high or low, is certainly not bound to execute an unconstitutional law; but his simply thinking it to be unconstitutional is a very different affair.
Suppose a collector should think the tariff unconstitutional; could he forbear to collect the duty? Could the Secretary of the Treasury, holding the same opinion, remit the duty? Could the President direct his Secretary to remit it?
In the Government under which we live, a power is provided to pass on the constitutionality of law. The President is not that tribunal. His office is executive. The opinion he holds of the constitutionality of a law, (except when called to sign it on its passage) he hold not officially but as any other citizen, at his peril; and as it is his sworn duty to execute the laws, if he refuses to execute a law, for whatever cause, he is guilty of a high breach of official duty, and commits an impeachable offence. It is the province of this House to hold him to his duty.
There is no end to the absurd consequences which would flow from an opposite principle. To what would it not lead? If the President may annul another which he thinks unconstitutional; and so may any of his clerks. The clerk of your House may refuse to carry a bill which you pass to the Senate, if he thinks it unconstitutional; for in that case, it is no more a law, on this principle, than an old newspaper. And if gentlemen contend that they reserve to the President alone this dispensing power of refusing to execute laws, which in his private judgment are unconstitutional, they merely give us, instead of the anarchy which would arise from its being possessed by all the Executive officers, a perfect Oriental despotism, produced by imparting it to one.
We have heard a good deal said about nullification, and no small opprobrium attached to the word. Has it never occurred to some gentlemen willing enough to stigmatize that doctrine, that they themselves have lent their countenance to the same doctrine, not in their alone, but in practice? Georgia orders a survey of the Cherokee lands. The law of 1802 makes it highly penal to survey lands belonging or secured to Indian tribes by treaty. It subjects those who transgress the law to a thousand dollars fine and twelve months imprisonment, and authorized the President to call out a military force to execute the law. The President tells all concerned that he will not enforce the law, because he thinks it unconstitutional. Is not that nullification? The convention of the Judges of Georgia decide all the Indian treaties to be unconstitutional. Is not that nullification? And yet, if I mistake not, propositions have been made in the quarter where this nullification is practised by wholesale, to censure the doctrine as theoretically advanced in a neighboring State.
I have remarked that the direct way to meet this question would have been to propose a law abrogating the treaties and repealing the intercourse law of 1802.
But a different course was pursued. A bill was presented, ably drawn and carefully worded, so as to leave this question entirely aside. Although the bill was an integral part of the policy of the State, designed to cooperate with it, and in fact build upon it as upon a foundation, it was so worded as not, in terms, to afford it any sanction. We were obliged to go to the President's Message, and to the reports of the committees of the two Houses of Congress, to ascertain its character. We did so; and we discussed the policy, as it discovered itself in those documents.
But harmless as the bill was in its terms, it could not have passed, but for the amendment moved by the gentleman from Pennsylvania, (Mr. Ramsay,) by which amendment it was provided that nothing in this act contained shall be construed as authorizing or directing the violation of any treaties existing between the United States and any Indian tribe. I was perfectly well persuaded, at the time, that this proviso would be without practical effect; but it saved the bill from being lost; and now from one end of the continent to the other, this proviso is held up to show that the Indian Bill of last Winter does not sanction the compulsory removal of the Indians; that the treaties are to be held inviolate; and that the Indians are to be protected in their rights; all the while that it is perfectly notorious, as I shall demonstrate before I sit down, that the Indians are not to be protected; that the treaties are violated; and that this proviso is a dead letter.
The bill passed, we all remember how, under the severest coercion by the previous question, that I have ever known, applied, too, for the purpose of shutting out the amendment of the gentleman from Pennsylvania. (Mr. Hemphill,)the object of which was to obtain information, in respect to the character of the country, to which the Indians were to be removed. For I beg it may be recollected, after all we have heard of the factious course pursued by the minority, that all we asked was the adoption of the amendment of the gentleman from Pennsylvania, which proposed to send a respectable commission into this region, to see if it be fit for inhabitation of the fellow beings whom we are driving from their homes, and that this was denied us.
Still the act seemed to promise something to the Indians, for it bore on its face, that the treaties were not to be violated. The money which it granted was granted conditionally; the condition was contained in a proviso; and, if that proviso were not acted up to, no appropriation was made, and no expenditure was lawful.
Just two, or perhaps three days after the passage of the act, the Georgia laws took effect, and went into operation over all the Indians included within the nominal boundaries of the State.
And here I reach a part of the subject, on which I dwell with great pain, the legislation of Georgia over the Cherokees. It is my duty to inquire into the character of the Georgia laws, against which our interference is invoked, and our protection demanded. I speak of the laws of Georgia individually, and not of the other States, who have extended their jurisdiction over the Indians, because the legislation of Georgia is better known. I do not single out her laws invidiously. Neither do I pretend an acquaintance with her whole code. I have not seen it. A few laws only, that from a part of it, have come to my knowledge, but those are suffi- [See 2d. page] cient to establish my proposition, that those Indians have great and just cause to look to us for protection.
I will first speak of the effect of the Georgia legislation upon the Cherokee government. The Cherokees, sir, have a very respectable representative government; respectable in its character; respectable in its origin. The first sketch of it proceeded from the same pen that drafted our own Declaration of Independence. In 1809 Mr. Jefferson gave this people the first elements of a system of government, adapted to their condition, which I will venture to read to the House.
'My Children, Deputies of the Cherokee Upper Towns
I have maturely considered the speeches you have delivered me, and will now give you answer to the several matters they contain.
You inform me of your anxious desires to engage in the industrious pursuits of agriculture and civilized life; that finding it impracticable to induce the nation at large to join in this, you wish a line of separation to be established between the Upper and Lower Towns, so as to include all the waters of the Highwassee in your part; and that having thus contracted your society with narrower limits, you propose, within these, to begin the establishment of fixed laws and of regular government. You say, that the Lower Towns are satisfied with the division you propose, and on these several matters you ask my advice and aid.
With respect to the line of division between yourselves and the Lower Towns, it must rest on the joint consent of both parties. The one you propose appears moderate, reasonable, and well defined; we are willing to recognize those on each side of that line as distinct societies, and if our aid shall be necessary to mark it more plainly that nature has done, you shall have it. I think with you, that on this reduced scale, it will be more easy for you to introduce the regular administration of laws.
In proceeding to the establishment of laws, you wish to adopt them from ours, and such only for the present as suit your present condition; chiefly indeed, those for the punishment of crimes and the protection of property. But who is to determine which of our laws suit your condition, and shall be in force with you? All of you being equally free, no one has a right to say what shall be law for others. One way is to put these questions to the vote, and to consider that as law for which the majority votes, the fool has as great a right to express his opinion by votes as the wise, because he is equally free and equally master of himself. But would it not be convenient for all your men to meet in one place would it not be better for every town to do as we do-that is to say; choose by the vote of the majority of the town and of country people nearer to that than to any other town, one, two, three, or more, according to the size of the town, of those whom each voter thinks the wisest and honest men of their place, and let those meet together and agree which of our laws suit them. But these men know nothing of our laws. How than can they know which to adopt? Let them associate in their council our beloved man living with them, Col. Meigs, and he will tell them what our law is on any point they desire. He will inform them also of our methods of doing business in our councils, so as to preserve order and to obtain the vote of every member fairly. This council can make a law forgiving to every head of a family a separate parcel of land, which when he has built upon and improved, it shall belong to him and his descendants for ever, and which the nation itself shall have no right to sell from under his feet. They will determine too, what punishment shall be inflicted for every crime. In our States generally, we punish murder only by death, and all other crimes by solitary confinement in a prison.
But when you shall have adopted laws, who are to execute them? Perhaps it may be best to permit every town and the settlers to its neighborhood attached to it, to elect some of their best men, by a majority of its voters to be judges in all differences, and to execute the law according to their own judgment. Your council of representatives will decide on this, or such other mode as may best suit you. I suggest these things my children, for the consideration of the Upper Towns of your nation, to be decided on as they think best, and I sincerely wish you may succeed in your laudable endeavors to save the remains of your nation, by adopting industrious occupations and a government of regular laws. In this you may rely on the counsel and assistance of the Government of the United States. Deliver these words to your people in my name, and assure them of my friendship.
January 9, 1809
In 1817 this government received the sanction of the United States, in a treaty negotiated in that year by the present Chief Magistrate, as a Commissioner Plenipotentiary for that purpose. In the preamble to this treaty the incidents of 1809 are alluded to; the purpose of the Cherokees who remained on this side of the Mississippi, to begin the establishment of fixed laws and a regular Government is recognized, together with the promise made by Mr. Jefferson of the patronage, aid, and good neighborhood of the United States, alike to those who emigrate and those who stand behind. This treaty was unanimously ratified by the Senate of the United States. Thus originated and thus confirmed, the Cherokee Government subsequently assumed a highly regular form and an improved organization. Its practical separation was excellent, ' it did the United States no harm, because it was assumed as the principle of our government, that no change was to be wrought by the improved institutions of the Cherokees on their relations with us.
Of the orderly and becoming manner in which the Cherokee Government was conducted, we have the satisfactory testimony of Messrs Campbell and Meriwether, who went among them to negotiate a treaty in 1823. I will read an extract from a letter addressed by them to the Council of the Cherokee Nation, dated Newtown, 16th October, 1823.
'Friends and Brothers: We are happy that a short time has been consumed in the correspondence between you and the State Commissioners.
'This has afforded as an opportunity of becoming partially acquainted with several members of this Council. For the whole body we entertain a high respect, and we trust, that, with some of you we have contracted individual friendships. In saying this, we do no violence to our feelings, neither do we lower the elevated character of the United States. People who have never seen you, know but little of your progress in the arts of civilized life, and of the regular and becoming manner in which your affairs are conducted.
'Your improvement reflects the greatest credit upon yourselves, and upon the Government by which you have been improved and fostered.'
Such was and is the Cherokee Government which Georgia has avowed her purpose, by one sweeping act of legislation, to put down. That State has enacted laws making it highly penal to exercise any of the functions of this Government. Chiefs, headmen, members of the Council, Judicial, and executive officers, are all subject to four years imprisonment in the penitentiary, if they presume to exercise any of the functions of Government within their own tribe, and under the Constitution which we originally and repeatedly exhorted them to frame.
In this way the greatest confusion is at once introduced in to the concerns of this unhappy people. Their own Government is outlawed, and it is made highly penal to execute its functions. The protection of the United States is withdrawn, because Georgia, has extended her laws over the Indians; and Georgia herself, although asserting, and in many respects exercising her jurisdiction, has not yet organized it in such a manner as to keep the peace among this afflicted race. Their system of Government, instead of being regarded as almost all Governments, however defective are entitled to be, as an institution necessary for the well being of the people, which ought to be treated, with tenderness and not be destroyed till a substitute is provided has been abated and broken down as a nuisance.
But among the laws of Georgia extended over the Cherokees, there are some which from their nature, must take up immediate effect and among these I cannot but notice several whose operation must be as injurious to the welfare of the Indians as the entire system is destructive of their rights. At the late session of the Georgia Legislature a law was passed 'that no Cherokee Indian should be bound by any contract hereafter to be entered late, with a white person or persons; nor shall any Indian be liable to be fined in any of the Courts of Law for equity in this State on such a contract.' I am aware that laws of this kind have been necessary among the dwindling remnants of tribes in some of the States, whose numbers are so degenerate that they are unable to preserve against the arts of corrupt white men the little property they possess. But among the Cherokees are men of intelligence and shrewdness who have acquired and possess large accumulations of property, houses, shops, plantations, stock, mills, ferries, and other valuable possessions; men who understand property and its uses as well as we do, and who need all the laws which property requires for its judicious movement. Notwithstanding this, Georgia, at one blow, makes all these people incapable of contracting. Men as competent as ourselves to all business transactions, are reduced by a sweeping law of a state of pupilage.
[Mr. Foster of Georgia explained that his law was passed for the benefit of the Indians to prevent their being imposed on. That it did not release white men from their engagements to Indians, but Indians from their engagements to white men]
I understand and stated the law precisely as the gentleman from Georgia states it. I know this character may be claimed for the law. But how does it seek the benefit of the Indians? By reducing them to a state of minority. Sir, it is for benefit ' protection of children, that they are unable to contract; but still they are children, and the law holds them to their infancy. And what sort of a boon is it to men of large property and active dealings to pass a law releasing them from their contracts? Does it not directly follow that, if they cannot be held to their contracts, no one will contract with them, and that the apparent limitation of the law which exempts the Indian while it binds the white man, is illusory, for who will contract with a person who is by law exonerated from compliance with its engagements? Such a law can have no other effect among Indians than among white men; and what would be the effect on the business of a community of white men, to enact a law releasing them from all engagements into which they might enter?
By the law of Georgia of 1829, the testimony of an Indian was declared inadmissible in any case, in which a white man is a party. This law was generally condemned during the discussions of last head. The objections taken to it were declared by some of the advocates of the course pursued by Georgia to be unreasonable, captious, and groundless, and were set down to the score of morbid sensibility and political philanthropy. Now, what has been the practical operation of this feature in the Georgia law? Governor Gilmer thus describes it in his Message, at the opening of the session of the Georgia Legislature:
'It is also due to our Indian People that that provision in the law of 1829, should be repealed, which prevents Indians and descendants of Indians from being competent witnesses in the Court of the State, in cases where a white man is a party. The present law exposes them to great oppression, while its repeal would most probably injure no one. Attempts have been made to strip them of their property by forged contracts, because of the impossibility of defending their rights by the testimony of those who alone can know them. And although the moral feeling of our frontier community has been too correct to permit such infamous proceedings to effect their ends; yet the character of our legislation for justice requires, that the rights of those People should not be exposed to such danger.'
Such is the character, which Governor Gilmer gives of this law, and of its operation. I have heard some details of the oppressions to which he alludes. I have no reason to doubt their truth; but I will not repeat them to the House, without vouchers to support them. I will only add, that this law rejecting the testimony of Indians, remains unrepealed; and that their rights ' property are still dependent on the 'moral feeling of the frontier community' of Ga. That frontier community must have better feelings ' principles, than usually actuate a part of every community, if in the continued operation of this law, the Indians are not subjected to the most grievous oppression.
I will mention another law of the new code. Its design may be imperfectly apprehended by me; and if I err in the motive for which I suppose it was enacted I hope I shall be excused on the ground of the great difficulty of picking up here and there-one law, in this newspaper, ' another in that- the information, which, as it seems to me, ought to have been spread before us, in ample detail, to enlighten and guide our legislation. The law, to which I allude, subjects all white persons, who shall reside within the Cherokee country, without a permit from the Governor of Georgia or such agent as the Governor shall authorize, and who shall not have taken an oath of allegiance as a citizen of Georgia, to four years imprisonment at hard labor in the penitentiary. Now, I should be glad to be informed, where, on her own principles, Georgia gets the right to exact such an oath from all persons resident on her soil, granting the Cherokee country to be her soil. The Constitution of the United States gives Georgia no such right. It is there provided, that 'the citizen of each State shall be entitled to all the privileges and immunities of citizens of the several States.' Grant that the country is subject to her laws: what right has she to render to the citizens of another State, an oath of allegiance as citizens of Georgia? If I go to Savannah or Milledgeville, and demean myself peaceably, I wish to know what right, under the Constitution, Georgia possesses to shut me up to hard labor in her penitentiary, if I will not take an oath as a citizen of that State.* I am told that this law is intended to strike at the missionaries. I do not assert the fact, nor ascribe motives to men or bodies of men. If this is its design, as it will unquestionably be its effect, I trust it will be borne in mind, that the missionaries were introduced into the Cherokee Nation under very respectable auspices. It was during the administration of Mr. Madison, and with the express consent and approbation of Mr. Crawford, while this gentleman held the office of Secretary of War. His letter to Mr. Kingsbury, to this effect is among the documents formerly communicated to the House. The missionaries were the promised the protection, countenance, and cooperation of the Government, and the annual appropriation for civilizing the Indians was recommended to be made, and has been applied in furtherance of their operations. They are, to say the very least, an innocent and a harmless man. They expressly disclaim having interfered in the political relations of the Cherokees with the United States. They have unquestionably been the instruments of great good. If this region, and its ill-fated inhabitants, were swallowed up tomorrow by an earthquake, and sunk from existence, the missionaries would have left monuments of their benevolent labors which will last as long as the history or the memory of this generation lasts; yes, sir, as long as the Earth and the Heavens shall last.+ The law I have quoted is supposed to aim at their exclusion.
Thus as it is possible, that Georgia (and I again beg leave to say, that I name that State not individually) may be thought by some persons not to have gone beyond some abstract right of civil jurisdiction, capable of being reconciled with a 'possessory right,' in which the Indians were promised by the Executive to be protected. But Georgia has not stopped here. In the course of the year 1829, it was found that this region possessed, and probably abundance, veins of gold. As soon as this discovery was made, intruders from every quarter, and from all the States in the neighborhood flocked into the gold region and overran the land. The Indians demanded their removal by the Agent. The Agent referred the case to the Secretary of War and the Secretary of War gave the requisite orders for their removal. This took place before the first day of June, 1830. That day the laws of Georgia took effect. And very shortly afterwards I read a Proclamation in the papers, proceeding from a gentleman, whom I most highly respect, the Governor of Georgia, and which appeared to be of a character so strange and unexpected, that I could scarcely credit my senses as I read it. Let me read a portion of this Proclamation to the House, which bears date 3d June, 1830.
'Whereas it has been discovered, that the lands in the territory, now occupied by the Cherokee Indians within the limits of this State, abound with valuable minerals and especially gold; and whereas the State of Georgia has the fee simple title to said lands, and the entire and exclusive property of the gold and silver therein; and whereas numerous persons, citizens of this and other States, together with the Indian occupants of said Territory, taking advantage of the Law of this State, by which its jurisdiction over said territory was not assumed until the first day of June last past, have been engaged in digging for gold in said lands, and taking therefrom great amounts in value, thereby appropriating riches to themselves, which, of right, equally belong to every other citizen of the State, and in violation of the rights of the State, and to the injury of its public resources', 'c. And then the Governor warns 'all persons, whether citizens of this or other States, or Indian occupant, to cease all further trespass on the lands of this State, and especially from taking any gold or silver from the lands included within the Territory occupied by the Cherokee Indians,''c. All further trespass on their own lands, and all further digging for their own gild!
It is true the Governor, in his Message at the opening of the late Session of the Legislature in Georgia, attempts to justify this strange pretension. 'The right thus asserted,' says he, 'was supposed to be established by the customary law of all the European nations, who made discoveries of formed Colonies on the Continent; by the fee simple or allodial title which belongs to the State, to all lands within its limits, or already granted away: and the absence of all right in the Indians, they never having appropriated the mineral riches of the earth to their own use.' Neither had Georgia appropriated these mines by occupation. As soon as the Cherokees knew their existence, they proceeded to take possession of, and to work them till they were driven away, by the laws of Georgia, and the troops of the United States. What force there can be in English Common law of fee simple allodial title, to control the stipulations of a treaty between the United States and a tribe of Indians, I confess my inability to imagine. The argument from the customary law of the European conquistadors proves a great deal too much. It would justify the Governor, not only in seizing the gold mines, but in reducing the Indians themselves to bondage and to labor in the mines. The Portuguese did this and so did the Spaniards. The slave trade was projected by the benevolent Las Casas, to relieve the Indians from digging their own gold for their conquerors.
When this subject was under the consideration of the House at the last session, I certainly did not entertain very favorable auguries of the treatment, which the Cherokees were likely to receive; but it never entered into my head, that they were to be denied a right to their own mines. On the contrary, I assumed it as a matter of course, that they were the lawful and admitted owners of this mineral wealth. Having, in the course of my remarks on this subject, had occasion to allude to the intruders into the gold region, before I could finish the sentence, in which I made that allusion, a gentleman who voted for the Indian bill, interrupted me, with the prompt assurance, that these intruders were ordered to be removed by the Executive. I was gratified at the information, although it was then no more (as I thought) than a matter of course. My next information on the subject was derived from Governor Gilmer's proclamation, claiming for Georgia the absolute property on the gold mines, and warning the Indians to desist from digging them.
Extraordinary as this is, I fear something more extraordinary remain to be told. By the intercourse law, the Executive is authorized to employ the military force of the United States to remove intruders from lands belonging or secured to Indians by treaty. This power has several times been exercised. But the Indians also possess by treaty, the rights of proceeding summarily to redress themselves. They possess the rights by the treaty of Holston negotiated in 1791. The Secretary of War in alluding to the right which the Indians thus possess, under the treaty of Holston, speaks of it disparagingly as a treaty forty years old. But it will be recollected, that with all the other treaties it was confirmed by an express article in that of 1817. What are the terms in which this right is secured to the Indians by the treaty of Holston?
'If any citizen of the United States, or other person, not being an Indian shall settle on any of the Cherokee Lands, such person shall forfeit the protection of the United States, and the Cherokees may punish him or not as they please.' Treaty of Holstein, Art. 8th.
In pursuance of this right, guarantied by treaty, but flowing from that law of Nature, which is before all treaty, the Indians have exercised this power in protecting themselves from intruders; nor was it, that I know of, ever questioned by any Administration till this.
It has received the sanction of the present Chief Magistrate in the amplest terms.
In a letter of Path Killer and other Cherokee Chiefs dated Head Quarters, Nashville, 18th Jan 1821, General Jackson thus expressed himself.
'Friends and brothers: I have never told a red brother a lie nor deceived him. The intruders if they attempt to return, will be sent off. But your light horse should not let them settle down on your land. You ought to drive the stock away from your lands, and deliver the intruders to the Agent; but if you cannot keep intruders from your land, report it to the agent, and on his notice, I will drive them from your land.
I am your friend and brother.
In pursuance of the authority conferred on the tribe, by the Treaty of Holston, an authority to the exercise of which they had been exhorted a few years ago, by Gen. Jackson, and of which the validity was I believe, never questioned before, the Cherokees, in the course of the last year, in consequence of the number and disorderly conduct of the intruders upon their lands, proceeded to remove a portion of them. This step, which they were perfectly warranted to take, occasioned a hostile incursion from Georgia, in the result of which one Indian was killed, and some other wounded and carried prisoners into Georgia. This occurrence occasioned the detachment of a party of United States' troops into the Cherokee country, who accordingly came, rather, as it would seem, to protect the intruders from the Cherokees, than the Cherokees from the intruders. Being there, orders were given to the troops to remove intruders from the gold region, and these orders were at first complied with, but with partial success; for as soon as a band of gold diggers were driven from one spot, they settled in another, like hungry vultures frightened from their prey. They are said to have been a colluvies of all classes and characters; a lawless and desperate gang.
And here ensued a scene of a character bordering on comedy, if any can be considered burlesque in so grave a matter. I give it as it is related in the memorial of the Cherokee Indians, on our table:
'In another case, in the name and authority of George R. Gilmer, Governor of Georgia, a bill was filed in chancery, in the Superior Court of Hall County, in July last, against certain sundry Cherokees praying for an injunction to stop them from digging and searching for gold within the limits of their own nation; and the bill being sworn to before the same A. S. Clayton, he awarded an injunction against the parties names in the bill as defendants commanding them, forthwith, to desist from working on those mines, under the penalty of $20,000 dollars, at a time and place where there were unmolested several thousand intruders from Georgia and other States, engaged in robbing the Nation of Gold, for which the owners were ordered not to work by the said writ. Under the authority of this injunction, the sheriff of Hall County, with an armed force, invaded the Nation, consisting of a Colonel, a Captain, and thirty or forty militia of the State of Georgia, who arrested a number of Cherokees engaged in digging for gold, who were ar first rescued by the troops of the United States stationed near the place, and conducted fifteen miles to the military camp, when a council of examination was held, and the exhibition of their respective authorities was made which resulted in the release of the sheriff and his party, and a written order by the commanding officer of the United States' troops, directing the Cherokees to submit is the authority of Georgia, and that no further protection could be extended to the Cherokees at the gold mines, as he could no longer interfere with the laws of Georgia, but would afford aid in carrying them into execution. On the return of the sheriff and his party, they passed by the Cherokees who were still engaged in digging for gold, and ordered them to desist, under the penalty of being committed to jail and proceeded to destroy their tools and machinery for gleaning gold, and after committing some further aggression they returned. Shortly afterwards, the sheriff, with a guard of four men and a process from the State of Georgia, arrested three Cherokees for disobeying the injunction, while peaceably engaged in their labors, and conducted them to Wadkinsville, before the same A. S. Clayton who then and there sentenced them to pay a fine of ninety-three dollars, cost and stand committed to prison until paid and also compelled them to give their bond in the sum of one thousand dollars for their personal appearance before his next Court, to answer the charges of violating the writ of injunction aforesaid. In custody they were retained five days, paid the cost, gave the required bond, and did appear accordingly, as bound by Judge Clayton, who dismissed them on the ground that the Governor could not be prosecutor in the case. For the unwarrantable outrage committed on their liberty and persons, no apology was made, and the cost they had paid was not refunded.'
I confess when I first read the account of this incident in the papers last summer, I supposed it was the wild freak of some inconsiderate subaltern. I did not imagine that it could have taken place by order from the Executive of the United States. The affair is but partially explained in any document I have seen; but this much is certain, that orders were sent by the Secretary of War to the Cherokee Agent and to the officer commanding the troops of the United States, to forbid the Cherokees as intruders from digging the gold mines. On the 26th of June, 1830, an order was issued from the War Department at Washington to the officer commanding the United States' troops in the Cherokee country, 'directing him, until further orders, to prevent all persons from working the mines, or searching for or carrying away gold or silver, or either metal from the Cherokee Nation.'
This order was communicated by the Agent to Mr. Ross, the principal Chief of the Cherokees, in a letter, dated 10th July, 1830, in which he says:
'I have also enclosed you a copy of a letter from the War Department, on the subject of the Gold Mines, by which you will see that all persons are ordered to be kept from digging for gold until further order; and have to request that you will, in such way as you think best make it known to the Indians, and also that you will advise them to desist for the present , as I am very desirous that no difficulties should take place between the United States' troops and them on the subject.'
And now, Sir, I think I may safely appeal to many gentlemen of the House, who voted for the Indian Bill last winter, whether it entered into their imaginations that under that bill and with its proviso, the Indians should be prohibited by the armed force of the United States from digging gold within the limits secured to them by numerous treaties. There were gentlemen, I know, who voted for the bill, deeming the policy of which it is a part, but declaring it unnecessary to save the Indians. Others thought something ought to be done in consequence of the compact in 1802. Others were influenced by some refined notion of a jurisdiction co-extensive with the charter. Did any of them mean or intend, that within less than three months-after adopting a proviso that the treaties should not be violated, the Cherokees should be driven, by the bayonet of our United States' troops from gold mines within the boundaries secured to them by treaty and law?
[To be concluded in our next.]
*The hour of the day assigned to resolutions being preoccupied with the discussion on another subject.
*These are the terms of the oath, 'I, A. B. do solemnly swear, or affirm as the case may be, that I will support and defend the Constitution of Georgia, and uprightly demean myself as a citizen thereof.'
+ Much information relative to the character and operation of the Missionaries among the Indian tribes, may be found in the memorial to Congress of the Prudential Committee of the Board of Commissioners for Foreign Missions, presented to the House of Representatives by Mr. E. of the 14th February.