Cherokee Phoenix


Published May, 29, 1830

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Of Mr. Robbins, of Rhode Island, in Senate of the U. S.

April 21, 1830

The bill to provide for an exchange of lands with the Indians residing in any of the state of territories, and for their removal west of the river Mississippi, being under consideration, Mr. Robbins of Rhode Island addressed the Senate as follows:

Mr. President: The whole argument in favor of this bill turns upon the question, whether the Indian nations within our territorial boundaries are competent to make treaties with the United States. For it makes no difference whether the Indian nation be within the chartered limits of a state, or out of those limits, if within the limits of the United States. For if being within a state renders the Indian nation incompetent to make a treaty, the being within the United States makes them equally incompetent, the reason being the same in both cases-namely, the being within the jurisdiction of another power; and therefore, as the argument is, subject to that jurisdiction.

If these Indian nations are competent to make treaties, then the proposed law is unnecessary; as its object may be effected by treaty; and this law is not necessary to aid the Executive in making this treaty.- And if these Indian nations are competent to make treaties; then this proposed law is not only unnecessary, but it is unconstitutional; for it is to make a treaty by the legislature; which can only be made by the Executive and Senate.

The turning question, then, of this whole debate, I repeat, is, whether the Indian nations within our territorial boundaries are competent to make treaties.

Before I proceed to discuss this question, I have to remark that it is matter of surprise that this question should now be made, when it is now made for the first time. From the time of the discovery of this new world by the old, down to this time, now more than three hundred years, the competency of an Indian nation, situated within the jurisdiction of another power, has never been made a question before. No jurist, no writer upon public law has ever made it a question. But, through all that long tract of time, treaties upon treaties, and almost without number, have been made with them, without a doubt, in a single instance, of their competency to make them. This is not denied on the other side; indeed it is admitted that the doctrine and practice of all past time, for century upon century, has been, to consider these nations, thus situated, as competent to make treaties. But all this is treated as if the whole world, from the beginning down to this time, had been benighted upon this subject; as if they had ignorantly supposed and be-______ Indian nations, thus situated, were competent to make treaties when in truth they were not competent to make treaties. That Great Britain was in this deplorable state of ignorance, with all her statesmen; that our governments, both state and nations, had been in this deplorable state of ignorance with all their statesmen; that the jurists or writers upon public law, of all the world, had all been in this deplorable state of ignorance. I say so treated; for I do not perceive that this new opinion is advanced with any loss confidence, or with any more diffidence, or account of that mass of authority and usage against it.

I have further to remark, that if indeed it be so, that these Indian nations, thus situated are not, and have not been, competent to make treaties, then all the treaties made with them are nullities. If so, the consequence of that consequence is enough, I should think, to make gentlemen pause a little, and even fear the success of their own argument; for the consequence would be such that the whole body of the rights acquired by Indian treaties or held under them, would be torn from their foundations, and the resulting evils would be incalculably great. I have said that in that case these treaties would be nullities, and who can doubt it? The President and Senate have the power to make treaties; but a treaty made with a party not competent to make it, is not a treaty; and the President and Senate are not competent to make a compact which is not a treaty; so that ever such treaty is void, as a treaty because the Indian nation was not competent to make it; ' it is void as a compact, because the President and Senate are not competent to make it. If this be so, my Hon. friend from Tennessee need not disquiet himself upon the subject of his contradictory obligations; for, upon his doctrine, these treaties have created no obligations upon the United states.

Again; I have to remark that if these Indian nations, thus situated, are not competent to make treaties, no more treaties can be made with them; that treaties which have been made, and not ratified, if any such there be, must be rejected; treaties which have been projected, for the purchase and extinguishment of Indian titles, as that in Indiana for instance, must be abandoned. We are to get no mare lands from them by treaty; if you are to get them at all, you are to get them by compact, and this compact to be made, not by the Executive and Senate, but by the Legislature. And, pray, how is the Legislature to make such a compact? It would be impossible, I think, to overcome the difficulties to this mode of acquiring Indian lands.

And then, in case of future wars with these Indian nations, how are they ever to be terminated? and how are the relations of peace to be ever restored, without the intervention of treaties?

Can anyone then wish to see established a doctrine fraught with these, and it may be with other equally deplorable consequences? I should hope not.

But if we must prove, what has never before been denied-what has always been admitted-admitted in theory, and in practice admitted-namely, that the Indian nations within our territorial boundaries are competent to make treaties-how is that competency to be made out?

I agree that an Indian nation to be competent to make a treaty, must be a sovereignty; for that treaties, properly so called, can only be made by sovereigns with sovereigns; but for this purpose it is not material whether the sovereignty be dependent or independent; sovereignty is all that is necessary to this competency. The honorable gentleman from Alabama (Mr. M'Kinley) said the sovereigns must be equal, but he will find no authority for that opinion, if, but equal, he meant anything more than that both must be sovereigns. A dependent sovereignty is still a sovereignty, and competent to make a treaty. I understood this to be admitted by the honorable gentleman from Georgia, in the outset of his argument; though I could not reconcile the subsequent part of his argument with this admission.

Now what is sovereignty? It is to be sui juris-- that is, to be subject within itself to no law but the law of its own making; externally it may be subject to another jurisdiction, and then it is a dependent sovereignty-to what degree dependent, will depend upon the treaty or treaties by which it is made dependent, if so , made by treaty. Now this is the condition of every Indian nation in our country, juris and therefore sovereign; but subject externally to another jurisdiction, and therefore a dependent sovereign. This has always been their condition since they ceased to be independent sovereignties.- Since they ceased to be independent sovereignties, these never has been a time when this was not their condition. When, or where I would ask, has any Indian nation been subject within itself to the law of another jurisdiction? I know of none; I have heard of none. If there be one, that one would be an exception from the rest; that one may ave relinquished its right to be juris; and then it would not be regarded as an exception.

Now the fact of being sui juris, and always having been so, constitutes the right to be so. I would be glad to know if any nation has, or ever had, a better title to be juri sui juris that the fact of being so, and of always having been so than a present possession fortified by a prescription that knows no beginning; that runs back as far as memory or tradition goes, and beyond to where it is lost, in that oblivion in which unknown times and their memorials are all buried and lost! And such is the title of every Indian nation now in fact sui juris, to be, and remain sui juris. There never was, there never can be, any better title to the right of being sui juris. To the validity of such a title, its acknowledgment by other sovereignties is not necessary; but is it were, there never has been a time in which it was not acknowledged by other sovereignties, or was denied by any other; but it is not necessary for a right in present possession, fortified and sanctified by such a prescription as this is, stands on higher ground, much higher, than any acknowledgment by other sovereignties could place it. Unquestionably then these nations are sui juris, or right sui juris; therefore sovereign, therefore competent to make treaties.

A multitude of matters have been urged upon our consideration on the other side, not to disprove the fact of the Indian nations being at this moment sui juris, nor the fact that they have always been sui juris; for these can neither be disproved nor denied; but to prove that though they are sui juris de jure; not being aware, as it appears to me, that the fact constitutes the right.

It is said, for instance, that the crown of Great Britain claimed a right to this country by the right of discovery; that what was the right of the crown, is now our right, and therefore, that the Indian nations are not sui juris de jure.

Now what was the right as claimed by discovery? (I make no question of that right, for the time has gone by for making that question except as a moralist or historian. Whatever was the defect of that right originally, time now has supplied that defect, as far as defect of right can be supplied by lapse of time.) But what was that right as claimed by discovery? It was that a right to the domain of the country, subject to the right of occupancy by the Indian nations; and that occupancy to be without restriction as to mode, and without limitation as to time; with the right of alienation of their possessory title, restricted to the proprietary of the domain. This was the claim of the British crown as founded on discovery; it was so defined and settled in the case referred to by the honorable gentleman from Alabama, (Mr. M'Kinley) the case of Johnson and M'Intosh. It was so settled by the court, in that case, because it had been so settled by what had become the customary law of nations. But did the King of Great Britain claim (for that is the important question) did he claim these Indians as his subjects, over whom, or for whom, he had a right to legislate, for their internal regulation? No never; never was a claim of that kind advanced; never heard of; never thought of that claim left them as it found them, subject within themselves only to their own jurisdiction.

Besides this notorious fact, the right of pre-emption, claimed by discovery, is decisive to prove that the right of jurisdiction was not claimed. If the crown claimed these Indian nations as his subjects, who claim a preemptive right to their titles? did any king claim a preemptive right to the land titles of his own subjects? Never. If discovery then is a good authority for what it claims it is food for what it disclaims; it disclaims the right of jurisdiction over and for the Indian nations. It therefore affirms and confirms this right in them, and guaranties it to them. is it possible that the honorable gentleman from Mississippi can suppose that the case of Grenada is a case in point? That was the case of a conquest, and the conquest ceded by the treaty of peace to the conqueror to be holden as a part of his dominions, and the people s a part of his subject; and both have been holden so ever since.

It is said again that a state has a right to exercise jurisdiction over persons within its territorial limits, and of course over the Indian nations within its limits; and, therefore, that such Indian nation can have no right to exemption from that jurisdiction. If this state right was admitted, it would not disprove the Indian right; it would only prove that the two rights were incompatible, and that if the State right is averted and executed against the Indian right, that Indian right must be annihilated.- That the Indian nation is placed within the limits of another jurisdiction, proves nothing against the Indian right, for that must be the situation of ever Indian nation within our territorial limits. It is son, and was to be so, by the very claim originally made to the country, on which it was originally settled, and by which it is now held. This country was in the possession of these Indian nations; the British claim to it as founded in discovery, was a claim to the domain of their country, subject to their right of occupancy. They of course must be situated i that domain. That domain was parcelled out into colonies, now become states. So that, by our very claim to their country, they were to be and to remain within our jurisdiction, and exempt for that jurisdiction, subject only to their own.

To strengthen this state claim against the Indian right, it is said that the state within its territorial limits has all the rights which the crown of Great Britain had within the same limits. But, as has been stated, the crown of Great Britain made no such claim against the Indian right. Happy will it be for these nations, if the claim of that crown is adopted by the states as the measure of their claim, and if they will content themselves therewith.

Still it is said that a sovereign independent state has a right to jurisdiction over all its won population; and these states were sovereign and independent when they adopted their Constitution; and that they did not surrender this attribute of sovereignty by that adoption. Admitting all this, it is still to be proved that an Indian nation within a state is a part of the population of a state, is the population which constitutes the community which constitutes the state, which is protected by the laws and amenable to the laws of the state as that community. But an Indian nation within a state is not a part of that community.

The population of the United States is taken periodically by regular census; it is now about to be taken for the fourth time; were the Indian nations within the United States ever included in any census, as a part of the population of the United States? Never, as everyone knows. And why not, if all persons within the limits of a sovereign jurisdiction are necessarily the subjects of that jurisdiction, as a part of the population under that jurisdiction?

The states pay direct taxes to the United States in proportion to their numbers; that is, to their population. But re the Indian nations included in that population? Never-they are expressly excluded by the Constitution of the United States. Then the states themselves, by adopting the Constitution, have defined what constitutes their own population; and have excluded from it these Indian nations.

Still it is insisted, and as a branch of the same argument, that the Constitution gives the Executive no authority to go within a state and make a treaty with a part of its population. This is true; but an Indian nation within a state, as we have just seen is not a part of its population. The power to make treaties as given by the Constitution, is a general power, and may be exercised at the Executive discretion, with any nation or people competent to make a treaty; and it is not material where that nation is situated or placed; if competent to make a treaty, or Executive is competent to make it with them.

Again, it has been said that in several states in which is situated some tribe or remnant of some tribe of Indians, that these states have subjected these Indians to state legislation. Without stopping to inquire how that fact is, and if a fact whether it has been with the will or against the will of these Indians; it is enough to say, that if those states have undertaken that legislation over those Indians against their will; and while they were a tribe and sui juris and when unto that time they had always been sui juris; that fact instead of proving a right in that legislation, proves a wrong by that legislature and instead of disproving the Indian right, it proves a violation of that right. I trust it is too late in the day, and so enlightened as this is, to contend that a fact which is a wrong, is a precedent to justify a similar wrong; and that a violation of right in one case, becomes a warrant for a violation of right in all similar cases.

In the multitude of matters urged upon our consideration, to show that the Indians are not sui juris de jure, these are all which appear to me to have the appearance of argument; for in the rest, I confess I cannot see even that appearance. It is said for instance (and I notice it as a sample of the rest-for it would be endless to notice them all in detail) that the Indian is an inveterate savage, and incapable of civilization. Admitting this to be the fact which I by not means do admit, what has it to do with the question whether his nation is sui juris and competent to make a treaty? Is the Indian right less a right because the Indian is a savage? or does our civilization give us a title to his right? A right which he inherits equally with us, from the gift of nature, and nature's God. The Indian is a man, and has all the rights of man. The same God who made us, made him, and endowed him with the same rights; for 'of one blood hath he made all the men who dwell upon the earth.' And if we trample upon these rights; if we force him to surrender them; or extinguish then in his blood; the cry of that injustice will cry to the throne of that God, and there, like the blood of Abel, will testify against us. If we should be arraigned for the deed before his awful bar and should we plead our boasted civilization in its defence, it would in his sight, but add deeper damnation to the deed, and merit but the more signal retribution of his eternal justice. As to the civilization of the Indian, that is his own concern in the pursuit of his own happiness. If the want of it is a misfortune; if neither takes from his rights, nor adds to our own. As to his being an inveterate savage, and incapable of civilization, I do not believe it; in that respect. I believe he is like the rest of mankind. The savage state is the natural state of man, and that state has charms to the savage, which none but the savage knows. Man nowhere, at no time, ever rose from the savage to the civilized man, but by the spur of an absolute necessity; a necessity which controlled and could not be controlled; it was not until he could no longer live as a savage; or go where he could not live as savage that he would submit himself to that incessant labor and severe restraint, which lies at the foundation of all civilizations; ' to which nothing but education and habit reconciles the nature even of civilized man. The wild and free nature of the savage, uncustomed to involuntary and constant labor, and to the multiplied and severe restraints of civilized society, revolts at the idea of that labor, and has strong repugnance to them can only be overcome, as I have said, by the force of an overruling necessity. I have said this, not that I disapprove or would discourage attempts at their civilization; but to account for the only partial success, if it has been only partial, which has attended those attempts; and at the same time to vindicate the Indians from the charge of incapacity for civilization; any further forth than is applicable to all mankind,while, in a savage state. That very necessity exists, and is beginning to exert its civilizing tendency, where the tribes in question now are; but will no longer exist if they are removed as is contemplated by this bill.

Again, it is alleged against one of these nations, situated not in one, but in several of these states, that they have been guilty of an act which force its their right to live independently of state jurisdiction, and which requires that the forfeiture should be immediately and rigorously enforced. It is the act of their having changed the form of their government for their own internal regulation. It seems that to better their condition, and with a view to their own civilization, they have discarded that of the savage, and adopted the government well devised to improve that condition and insure that civilization; a government that is in itself a monument of wisdom, that speaks volumes in favor of their capacity for civilization, and of their advances therein, for it has every essential feature of a free and well balanced government. It is evidently not a work of blind imitation, for while it has followed the best models, it has followed them only so far as they were adapted to their circumstances; and it is original so far as their circumstances required it to be so and where it is original, it is no less admirable than where it is imitative. Attentive to those circumstances-so far from assuming any powers inconsistent with their external relations, either to the United States or to those states, that government recognizes and ratifies those relations exactly as they exist, and confined itself entirely to provision for their own internal police. Sensible of their rude state, and with a view to their own civilization, it makes it the primary duty of the nation to provide the means of education, and to promote the acquisition and diffusion of knowledge. - Indeed, all its provisions show a wise survey of the present, and a provident forecast for the future. Now, this new government is not to be tolerated for a moment; state legislation must come and abate it as a nuisance, and the nation are to be punished for this atrocious act, with the forfeiture, and forever, of every national right. They are not to be permitted even to resume the government they had discarded, and to live again as savages; but they are at once and forever to be subjected to the rule of another jurisdiction, never again to enjoy the right of self government; a right which has come down to them from their fathers,and through an unknown series of generations, and for an unknown series of ages. A right which they had used, but not abused; certainly not in the act which is made a pretext for its destruction.

Ill fated Indians! barbarism, and attempts at civilization, are alike fate to your rights; but attempts at civilization the more fatal of the two. The jealous of their own rights are the contemners of yours; proud and chivalrous states do not think it beneath them to take advantage of your weakness. You have lands which they want or rather which they desire, for they do not want them; your rights stand in their way, and those proud and chivalrous states do not think it beneath them to destroy your rights by their legislation.- Proud and chivalrous states do not think it beneath them to present to your feeble and helpless condition, this alternative-either to abandon your homes, the habitations you have built, the fields you have planted, and all the comforts you have gathered around you; the homes of your fathers, and the sepulchers of their dead; and go far into the depths of an unknown wilderness; there to abide the destiny which may there await you; or to surrender your rights, and submit yourselves to their power, but to expect no participation in their rights.

An alternative which has planted dismay and despair in every heart that palpitates in that nation; for they see their situation, and that nothing is left them but resignation to their fate. Within themselves they have no resource; without they have no hope.- The guarantee of treaties made with the United States- the faith of a mighty nation pledged for their protection--which was their hope, is now their hope no more; like the morning cloud and the early dew, it has passed away; for the chief of that mighty nation has been appealed to make good that guarantee, but has been appealed to in vain. He has told them that he will not make it good; and that they must submit to that alternative.

But we are told they have deserved all this, because they have changed the form of their government. But has this changed their external relations with the United States? or with those states? Not in the least. Nor in any one possible respect. The new government, like the old, is made for their own internal regulations and for that object merely. Sui juris as they are and always have been, they had a right to make the law for their own internal regulation, according to their own will, and to change it from time to time, according to that will. They have done this, and in doing this they have done no more than they had a right to do. If they now are a government within a government, at which such an outcry is made as justifying their destruction, so they always have been; and not more so now than they always have been. They have always been what the gentleman calls an imperium in imperio-dependent and without the external prerogatives of sovereignty; but still an imperium. But no matter-no matter how justifiable, how proper that change of government was; how strictly a mere exercise of right, they see and they feel that their doom is sealed; that the decree is gone forth, and will be executed.

The cry of the miserable Indian will not arrest it; the sympathy of this nation in that cry will not arrest it; that sympathy is not credited, or if credited is despised; and we are told here, and in a tone of defiance, too, that no power shall arrest it. My fears are that no power will arrest it, none certainly will if this bill pass, and without this amendment; for then the Executive will not arrest it. But if executed, and when executed, for one, I will say, that these Indians have been made the victims of power exerted against right; the victims of violated faith, the nation's faith; the victims of violated justice; yes, I call God to witness of his violated justice.