HOUSE OF REPRESENTATIVES DECEMBER 1st.
From the Milledgeville Recorder.
Mr. Glascock, by leave of the House, offered the following resolution, to wit:
Resolved. That his Excellency the Governor and he is hereby respectfully requested to lay before this branch of the Gen. Assembly, any information in his possession in relation to our Indian Affairs, which he shall deem proper to communicate together with his own views on the subject, as far as he may be pleased to express them, or deem them calculated to aid us in our deliberations on measures most expedient or proper at the present time, to promote the interest and welfare of the State and the Indians.
Mr. Howard offered as a substitute of the same the following resolution:
Resolved, That his Excellency the Governor be respectfully requested to communicate to this branch of the General Assembly any information in his possession in relation to the Cherokee Nation, and which might have an influence upon the policy of the measure of immediate survey and occupancy of the Cherokee lands, which has not heretofore been communicated together with any views of the Executive upon the subject which that department may think proper to make known.
Mr. Murray offered in lieu of the original and substitute the following:
Resolved: That his Excellency the Governor be respectfully requested to communicate such information to the General Assembly of this State now in possession as he may deem expedient, relating to the Indian territory now in the occupancy of the Cherokee Indians.
On the question to agree to the same, in lieu of the original and substitute, the Yeas were 41, Nays 84. So the motion was lost and then Mr. Howard's substitute was adopted.
EXECUTIVE DEPARTMENT. GA.
Milledgeville Dec. 1st 1831
To the House of Representatives:
GENTLEMEN, Having been called by your resolution of this date requesting me to lay before your branch of the General Assembly, any information in my possession, 'in relation to the Cherokee Nation, and which might have an influence on the policy of the measure of the immediate survey and occupancy of the Cherokee lands, which has not heretofore been communicated, together with any views of the Executive upon the subject, which that Department may think proper to make known,'- in answer thereto, I submit the following, as the result of long reflection on the important subject referred to.
It is believed that a crisis has arrived in which we cannot permit the course of our policy in relation to the Cherokee part of Georgia to remain in its present perplexed and extraordinary condition, without jeopardizing the interest and prosperity, if not the peace and safety of the State.
Circumstances within the recollection of our whole people, imperiously demanded the extension of the laws and jurisdiction of our State, over our entire population and territory. This step has been taken, and cannot be retraced. The State cannot consent to be restricted in the exercise of her constitutional rights.- It is now too late for us to theorize on this subject; we are called upon to act; the public functionaries of our State stand pledged to their constituents, and the world, to sustain the ground which they have taken.-It is our constitutional right, and moral duty, forthwith to interpose, and save that part of our State from confusion, anarchy, and perhaps from bloodshed.
The question of the right of the State to jurisdiction seemed for a time to have been settled. Our laws were in regular unmolested operation over our entire territory, our rights appeared to be no longer controverted; and the responsibility for the existing evils was devolving on ourselves.
But new and unexpected difficulties are arising out of the imbecility of our own measures, and the selfishness of some of our citizens. It has been thought that some of our most distinguished citizens have thrown almost insuperable obstacles in the way of a speedy termination of our Indian difficulties. The laws heretofore enacted, for the maintenance of the jurisdiction of the State over that portion of our territory, and for the government of all persons residing therein, it must now be admitted, have failed to accomplish all that was desired and expected by the friends of these measures. The defects of our laws have been evinced by their practical operation. It is believed that any attempt to establish a salutary, civil government, over a country containing nearly five millions of acres of land, while destitute of the materials to administer the law, must, from the nature of things, prove in a great measure abortive. A few thousand half civilized man, both indisposed and incompetent to the faithful discharge of the duties of citizenship, and scattered over a territory so extensive, can never enjoy the inestimable blessings of civil government.
Our government over that territory, in its present condition, in order to be efficient, must partake largely of a military character, and consequently must be more or less arbitrary and oppressive in its operations.- If the present system be continued, it is important, that ample powers should be afforded to the Executive to regulate the conduct and control the operations of the agents employed to administer the government, in that part of the State: but it is doubtful even with this power whether any vigilance and energy on the part of the Executive, can wholly prevent injustice and oppression being committed on the Indians, and at the same time maintain the laws inviolate.
If Georgia were at this day to relinquish all right, title, and claim to the Cherokee country, what would be its situation! The impotency of the Cherokees to maintain a regular government, even for a few months perhaps for a few weeks, would at once be demonstrated. The country would speedily be over run, chiefly by the most abandoned portions of society from all quarters. The gold mines would hold out an irresistible temptation to all such characters. The existence alone of the rich gold mines, utterly forbids the idea of a state of acquiescence on this all engrossing subject.
Our true situation and motives on this question are still misunderstood, and often misrepresented by those at a distance. In order to appreciate our policy, our true situation must be understood. I will not attempt to enumerate the wrongs, embarrassments, and perplexities, which this state has encountered, by what I am constrained to deem, the impertinent intermeddling of 'busy bodies.' Officious persons of various descriptions have unfortunately succeeded, in inducing our Indian people to believe that we are their enemies, and oppressors and in alienating their affections from us. These various intermeddlings hastened the crisis which compelled the Sate to the course, which she has taken: and the day must speedily arrive, when all the heart-burnings on this subject must be put to final rest. The combined and combining influences now in operation against the character, interest, peace, and prosperity of the State, cannot be much deplored in silent inaction; nor ought we to place any reliance on the inefficient measures. Unfounded calumny and prejudice; kept at a distance, may be endured; but domestic and household enemies produce unceasing disquietude and danger.
The unfortunate remnant of Cherokee Indians remaining in Georgia, ought now to consider themselves the admitted charge of our peculiar care; and if possible, we ought, as their friends and benefactors, to preserve and cherish them. They ought not forcibly to be dispossessed of their homes, or driven from the land of their fathers; they ought to be guarded and protected in the peaceable enjoyment of a sufficient portion of land to sustain them with their families, in their present abodes, so long as they may choose to remain; and their rights and property should be as well secured from al lawless depredation as those of the white man.- It would be as cruel, as unjust, to compel the Aborigines to abandon the graves of their fathers; but in the present extraordinary state of things, it would be visionary to suppose, that the Indian claim can be allowed, to this extensive tract of country,-too lands on which they have neither dwelt, nor made improvements.
Principles of natural law, and abstract justice have often been appealed to show that the Indian Tribes within the territorial limits of the states, ought to be regarded as the absolute owners and proprietors of the soil they occupy.
All civilized nations have acknowledged the validity of the principles appealed to; wit such modifications, and interpretations of these principles, as the truth of history verified especially in the settlement of this country. The foundations of the states which from this Confederacy were laid by civilized and Christian nations; who considered themselves instructed in the nature of their duties, by precepts and examples contained in the sacred Volume which they acknowledged as the basis of their religious creed, and obligations. To go forth, subdue, and replenish the earth were considered divine commands. Whether they were right or wrong, in their construction of the sacred text; whether or not, their conduct can be reconciled with their professed objects, it cannot be denied, that possession actual or constructive, of the entire habitable part of this continent, was taken by the natives of Europe and that it was divided out, and held by them, originally, by the right of discovery, as between themselves, and by the rights of discovery and conquest, as against the aboriginal inhabitants.
The English colonies and plantations were settled and governed under various charters, commissions and instructions, issued by the crown to individuals or companies; and notwithstanding that the paramount sovereignty was reserved in all the charters, to the mother country; yet in the grant of the absolute property in the soil, there was no reservation of any part of it to the natives; who were left to be disposed of, as the proprietors might think fir and proper.
Humanity, and the religious feeling of early adventures in America, connected with the consideration of the power and immense numbers of the native races, and their savage mode of warfare, laid the foundation of the policy adopted in this country, towards the Indians. The practical comment, to be found in the acts of all the governments of North America, evinces very little regard for the elementary doctrines of theoretical writers on this subject. One of the expedients resorted to, by the early settlers in this country as a fundamental principle of policy towards the Indians was to appear to do nothing which concerned them, either in appropriating their lands, or in controlling their conduct without their consent. But instances have occurred, and will again occur, in which the interests of civilized communities have demanded, and will again demand a departure from this seeming liberal policy. It is believed that many of the acts of the colonial, as well as of the state governments, will maintain the great fundamental principle, that within the territorial limits of the Colonies or States, the ancient possession of the Indians conferred on them no rights, either of soil or sovereignty.
The rigor of the rule for their exclusion from the rights has been mitigated in practice in conformity with the doctrines of those writers on natural law, who, while they admit the superior right of the agriculturist over the claims of savage tribes in the appropriation of wild lands yet upon the principle that the earth was intended to be a provision for all mankind, assigned to those tribes such portions as, when subdued by the arts of the husbandman, may be sufficient for their comfortable subsistence. The General Court of Massachusetts, in 1633, declared, 'That the Indians had the best right to such lands as they had actually subdued and improved.' The government of that Colony at the same time asserted its right to all the residue of the lands within its chartered limits, and actually parcelled them out by grant, among the white inhabitants; leaving to these the discretionary duty of conciliating the Indians, by purchasing their title. The General Assembly of Virginia asserted the unrestricted right of a conqueror, and at the same time conceded what the principles of natural law were supposed to require when in 1658 it enacted 'that for the future no land should be patented, until fifty acres had first been set apart to each warrior, or head of a family belonging to any tribe of Indians in the neighborhood.' No respectable jurist has ever gravely contended that the right of the Indians to hold lands could be supported in the courts of the country, upon any other ground than the grant or permission of the Indians of the sovereignty or State in which such lands are situate. It is believed that no title to lands, that has ever been investigated in any of the courts of the States, or of the United States has been admitted to depend on any Indian deed or relinquishment, except in those cases where grants had been previously made to individual Indians, to hold in fee simple, either by the state or colonial governments.
With all these facts and examples before us taken in connection with the extraordinary state of our Indian affairs, will any citizen of Georgia hesitate, upon the question of advancing or receding? To stand still, will in effect be, to recede-to recede, is to abandon our rights, and tacitly admit our incompetency to sustain our constitutional government, within our own limits. Our laws now in operation, for the maintenance of our authority and the preservation of order, over our Cherokee lands, must necessarily be temporary: the expense alone of the present system, is a burthen which cannot be permitted to continue long. The present state of things in the Cherokee country, it is believed, is strengthening the adversaries of Georgia, at home and aborad. In order to secure and protect the Indians, in their abodes, and their property of every kind, under our laws, their individual and separate possessions ought to be defined by actual survey; in accomplishing which it will be least expensive, and most compatible with the views of the state (as provided by the act of the Legislature at its last session,) to survey the entire country.
Until we have a population planted upon the unoccupied portion of this Territory, possessed of all the ordinary inducements of other communities, to sustain our laws a d government; our present laws providing for the government of this part of the state, should not only be continued; but ample power should be afforded to enforce obedience to their requirements. To effect this object, the Executive should be vested with full power, promptly to control the agents who have been, or may be selected, to maintain the authority of the laws, in that portion of the state.
I never can consent to be considered amongst the number of those, who disregard the interests or claims of the Cherokee Indians. Georgia would still forbear, if any hope still remained, that her embarrassments could be terminated by negotiation, or investigation of any kind; but the present posture of affairs furnishes to satisfactory assurance of a successful issue to these injurious embarrassments and difficulties, and the State would be responsible for the evils that might ensue. I would recommend no course which might tend, in the slightest degree, to weaken the just claims of the Cherokee Indians, to full indemnity and remuneration from the government of the United States, for all guarantees made by that government to the Indians, to lands within the limits of Georgia.
As a member of the Federal Union, we should duly consider the obligations of the United States to the Cherokee Indians. Whether a treaty or compact be made with one of the states of the Union, or with a dependent, and subject the community; the faith of the nation should not be disregarded. While the antecedent engagements of the United States to Georgia are entitled to precedence in their observance; yet, as far as possible, the Cherokees should compensated for any failure on the part of the U.S. literally to comply with their stipulations to that people. That being done, there remains no just cause of complaint. The first duty of every government is to protect the rights and promote the property of its own members. Yet the rights and interests of others, of whatever character or condition, are not to be wantonly restricted; nor in any case wholly disregarded. But the principle cannot be sustained by any fair course of reason or authority, that the United States can in justice be bound to violate its relations or compacts with Georgia, as one of the states of the Union, or the rights of this state as a third party, for the mere consideration of performing an after obligation, or secondary duty to the Indians.
Regardless of the pretensions of others, I yield to none, in my respect, friendship, and veneration, for our present, patriotic Chief Magistrate of the Union. He has, upon every fit occasion manifested an unceasing disposition to better the condition of the Indians: and at the same time to relieve the states from this embarrassing portion of their population. IN an especial manner, he has manifested his deep sense of the wrongs brought upon Georgia, by the want of good faith on the part of the Federal Government; and has fearlessly advocated the rights of Georgia, to the full extent of her claims. Therefore, every consideration of duty and justice, requires our cordial support of the President, in all measures emanating from him; which may not be deemed ins\compatible with paramount duties.
In conformity with the views herein submitted, I would respectfully recommend to the General Assembly, an immediate survey of the Cherokee Territory. After completing the survey of the country,(unless it shall become indispensable to the interest and peace of the state to act differently) I would yet pause for a time, and endeavor to maintain our present, unpleasant, expensive, and embarrassing situation, in the hope,that better counsels may then prevail among the Indians, and that those who govern them may yield to such measures, as will obviously promote their real and lasting interest.
But should circumstances render it indispensable, to take possession of the unoccupied Territory, we can then sustain the Indians in their homes, protect them in their rights, and save them from that cruelty and oppression, which have too often been the inheritance of this unfortunate people, in the confidence that their claims to the territory thus occupied by Georgia, will be extinguished by the Federal Government, incompliance with the compact of 1802.