SPEECH OF MR. EVERETT.
Of Massachusetts, in the House of Representatives, on the 11th and 21st of February, 1831. On the Execution of the Laws and Treaties in favor of the Indians.
The winding up of this affair was in keeping with its commencement and progress. The object of marching the troops into the Cherokee country, according to Maj. Gen. Macomb. 'was to guard against the difficulties which it was apprehended would grow out of the conflicting operations of the Cherokees and the lawless intruders, upon the mineral district within the State of Georgia. Having fulfilled the instructions of the Government, the troops were directed to return for the winter to their respective quarters.'
On the 29th of October last, Governor Gilmer wrote to the Secretary of War, requesting the removal of the troops, on the ground that the State of Georgia could enforce her own laws. On the 10th of November, the Secretary answered him, that previous to the receipt of his letter, (two days before) the troops had been ordered out of the Cherokee nation, because the purposes for which they had been sent into it were in a great measure accomplished.
This object, according to the General Commanding in Chief, was to prevent collision between the Cherokees and lawless intruders in the gold district. It was answered, by removing both!
And here it is obvious to ask, how, on the ground assumed by Georgia and sanctioned by the Executive of the United States, the President could feel himself authorized to employ an armed force of the United States in removing gold diggers, lawless or lawful. Indians or white men, from the gold mines of Georgia, if Georgia's they must be? It is not his duty to enforce the laws of Georgia, nor to protect her property.- She maintains that she is able to do it herself. Nay, the still broader question present itself--what right, on the ground assumed by Georgia and the Executive, have we to go upon the soil of Georgia to remove or bribe away a part of her subjects of citizens. What right to keep an agent there, or to pay them an annuity? Am I answered, it is done in pursuance of treaties? The treaties are declared unconstitutional and void. Sir, it happens now to accord with the interests of Georgia to permit it, but surely she will not bend her principles to her interest?
It has been urged against the Colonization Society, on very high authority, that it is unconstitutional for the United States to go into a State to remove a part of its colored population. In a very able report made to the Senate. I think at the first session of the twentieth Congress, I find the following argument:
'Before they leave this part of the subject, the Committee will observe, that the framers of the Constitution most wisely abstained from bestowing upon the Government thereby created any powers whatever over the colored population, as such, whether this population was bound or free.
'If the United States possess the right to intrude into any State for the purpose of withdrawing from thence its free colored population, they undoubtedly must exert practically its power of previously deciding what persons are embraced within this description. They must have the power of determining finally not only who are colored, but who are free persons. This committee believe however, that any attempt by the United States, to exercise such a power would not only be a direct violation of the Constitution, but must be productive of the worst effects.'
Now, Sir, it is not necessary to consider how far this argument applies to the operations of the Colonization Society. But the principle that the Indian country is a part of the soil, and its population, a portion of the People of the State, I confess I do not know how gentlemen who stand on the ground of State rights ' strict construction of the Constitution , can move an inch in this matter. What, Sir, constitutional for the General Government to go into the counties of Georgia, into Hall and Habersham, to get the people of these counties together-people subject to the laws of Georgia-make a compact with them to move away in a body-take millions of money out of the Treasury of the United States, to effect this subject-to enable the President to go upon the soil of Georgia and buy off her people! In what part of the Constitution on the principles which gentlemen set up is there a word to warrant such a policy, or to justify an appropriation of money to carry it into operation?
I know it has been answered, that it is constitutional to fulfil a compact. I must own that this mode of getting at a grant of power is, for statesmen who advocate a strict Constitution, liberal enough. According to this principle, the General Government may enter into a compact to do an unconstitutional act. On the ground upon which this new Indian policy rests, the compact of 1802 was itself unconstitutional and was so argued to be, in the Senate last winter. If the soil and jurisdiction of this territory were already Georgia's, the United States had no right to interfere with it, not even to extinguish the Indian title on peaceable and on reasonable terms. Unless the principles of the Constitution vary with the complexion of those who are the subjects of its provisions. The United States have just as little right to enter into compact to extinguish title of the red men of one county of Georgia, as that of the white men of another county. The gentleman are actually obliged to come to us for principles, on which they can remove the Indians. Unless the treaties are valid, the United States have no power to act in this matter. Gentlemen, deny the validity of the treaties in order to get at the soil; and then come back to the treaty-making power, to get the Indians removed from it.
The conduct which Georgia has pursued, with respect to gold, forcibly reminds me of the opposite course adopted by Mr. Jefferson, in reference to some iron mines discovered at the mouth of the Chickamauga, in Tennessee. Tennessee did not claim these mineral treasures; but the Indians themselves expressed a wish to cede these mines to the United States, for the purpose of having them wrought. Mr. Jefferson accordingly negotiated a treaty of cession for six miles square, including these mines; and gave the following reasons to the Senate as his inducement: 'As an establishment would occasion a considerable and a certain demand for corn and other provisions and necessaries, it seemed probable that it would immediately draw around it a close settlement of the Cherokees; would encourage them to enter on a regular life of agriculture, familiarize them with the practice and value of the arts, attach them to property; lead them of necessity and without delay to the establishment of laws and Government, and thus make a great and important advance towards assimilating their condition with ours.'
But the seizure of the gold mines, violent as that measure is; beyond anything that was or could have been apprehended loses its importance, when contrasted with another act of great unexampled, and I must add stupendous injustice. I refer to the law which has passed the Legislature of Georgia, for the survey and disposal of the lands of the Cherokees. Let it be remembered, then,
1. That there is a boundary, between the Cherokees and the States surrounding them fixed by numerous treaties and by law.
2. Let it be remembered, that the Treaty of Holston, which was negotiated in 1791, on instructions previously ratified by a unanimous Senate, contains this simple and expressive pledge: 'The United States solemnly guarantee to the Cherokee Nation all their land not hereby ceded.'
3. That as late as 1817, this as one of the previous treaties and was declared to be `in full force,' with all its `immunities and privileges;' and that this confirmation is contained in a treaty, negotiated by the present chief magistrate, and unanimously ratified by the Senate.
4. And that the Intercourse Act makes it highly penal, to survey the lands belonging or secured to any Indian tribe by treaty.
And now, sir, I hold in my hand a law of Georgia, authorizing the survey of the lands thus solemnly guarantied; their division into districts, and sections; and their distribution by a land lottery!
There is a provision in this act of Georgia, by which, if the President of the U. S. should execute his sworn duty, in enforcing the laws of the U. S. himself to imprisonment for five years in the Georgia Penitentiary; that being the punishment denounced by this State law on any person, who shall obstruct the surveys which it is most assuredly the duty of the President to do.
The law provides for the survey of the country into sections ' districts. The sectional surveyors twelve in number are to proceed with as little delay as possible to the duties assigned them. The survey of the districts is to be suspended until the next meeting of the General Assembly, and until further enactments for that purpose. The number of district surveyors is one hundred and ninety-six, and the Governor is authorized to call out a military force to protect them in the discharge of their duties.
The only mitigation of the severity, with which this bill acts on the Indians, is the provision contained in the thirty first section. By this section it is directed, that 'the Indians and their descendants, who have made improvements upon the territory, are to be protected in the possession of those improvements ' of the lots of land upon which the said improvements are made, until otherwise directed by the General Assembly, or until they are voluntarily abandoned by the Indian occupants. Indians not allowed to sell their right of occupancy to any person, unless it be to the Government of the United States, or to the Government of Georgia, for the use of the persons drawing such improved lots in the lottery, and no grant to be issued, until the Indian shall have abandoned the lots in their occupancy; the fortunate drawers of such improved lots, to forfeit their draws, should they by threats, or menaces or violence, remove or attempt to remove any Indian, from such improved lot.'
How much this mitigation is worth may be judged of by considering, that it exists only during the pleasure of the General Assembly, and that the evidence of the Indian occupants, and of all those able to support his title, is inadmissible in the 'Georgia Courts. In this state of things, it little matters, whether he be expelled at once, or his estate be thrown into a land lottery, to be drawn as a prize, and a 'fortunate drawer' planted at his door, or dogging him wherever he goes, till he voluntarily leaves his home.
Especially when we recollect, that, objectionable as this law is, a still more objectionable and oppressive measure was proposed and strenuously advocated, and if I am not misinformed, adopted, in the House of Representatives of Georgia. I derive my information from a letter, written from Milledgeville, and published in the Augusta Chronicle. I know nothing of its author, but that, as appears on the fact of the letter, he is a friend of the present Administration.
Extract of a letter to the Editor of the Augusta Chronicle from a correspondent in Milledgeville, dated 27th November, 1830.
'The particular question now and for several days past before the House, is the adoption of Mr. Hayne's substitute to the bill reported by Judge Schley, from the Committee on the State of the Republic. This contemplates, as you are aware, the taking immediate possession of the Indian lands, and forcibly driving the Indians therefrom. How such a bill can be the subject of a moment's consideration in a Christian land, is to me the subject of the deepest astonishment, and yet many intelligent men believe and fear it may be successful. For my own part, I will not believe it possible, and indeed should scarcely credit the evidence of my senses, if such were the fact, God forbid such a fatal consequences! and I will confidently rely on his over-ruling goodness and protection to avert it, to save the Indians-nay tenfold, to save our own State from the serious evils which must inevitably follow it. I must not trust my feelings farther on this point; perhaps they are too deeply and unnecessarily wounded. We will at least hope so. One thing is certain, that no effort is or will be spared to prevent the adoption of the measure; and I am proud to see among the opponents many, very many of the first and ablest men of the Assembly of both parties. Indeed it is by no means a party matter, 'c.
'Numerous as are the advocates of this measure, the array of talent against it is very powerful, and the arguments of its opponents are sound and incontrovertible. To say nothing of humanity, the want of necessity or expediency; the ingratitude of opposing the President and his Administration which have long been and still are making every possible effort in our behalf; the folly of now necessarily arraying them against us, contrary to their will, and of indirectly giving their and our enemy, Mr. Clay, still further and greater power against them; the imminent danger of a direct and violent controversy with the General Government, all of which are directly opposed to this measure, the faith and honor of the State stand openly and irrevocably pledged against it. But for this pledge given by our Representatives, Mr. Wilde, and others on the floor of Congress, last session, against the exercise of any force against the Indians, any effort to drive them forcibly from the lands, the bill to encourage their emigration to the West of the Mississippi would not ' could not have passed.'
This bill with some amendments passed the House of Representatives of Georgia 76 to 55.
I read this to show that it is not merely 'the white savages of the North,' nor the opponents of this Administration, who condemn the course pursued by Georgia.
But I do not find that the law passed is essentially better. The evils is (sic) only delayed. The lands improved by the Indians are not exempted from the lottery. An amendment to that effect was rejected, by a vote nearly two to one; and after the lottery is drawn the unhappy occupant is only to keep possession till 'the fortunate drawer' can persuade him to go.
And now, Sir, is there a member of this House, who can recollect, that the United States have solemnly guarantied this land to the Indians; that we guarantied it for a valuable consideration, which we keep; that we guarantied it voluntarily, unanimously, and before the compact of 1802, and not feel that the guaranty ought not to be violated?
I again appeal to gentlemen, who, without approving of the principles of this policy, gave their votes for the bill of last session, qualified as it was by the Proviso, whether they would have lent their sanction to the measure, had they believed, that, within a twelve month, a law would be passed by Georgia, to send an army of surveyors into the territory of the Cherokees, and to subject any person who should presume to execute your laws, to the punishment of the Penitentiary, from the President of the United States, down to the lowest officer in the service?
Why, Sir, granting all these treaties made by the United States are unconstitutional and not binding; granting the truly atrocious proposition, that we break the treaty and keep the consideration; granting that Georgia still possess the power which, if she ever had it, by adopting the Constitution she gave up to the United States, ' that things now stand as they stood, under the old Confederation, all this would not mend her title to these lands. Under the Confederation, she admitted the right of the Cherokees to treat as independent nation. She treated with them herself; the treaty of Augusta in 1783 stands in her statute book; and in so doing recognizes their right to cede, and to keep what they do not cede. I will read to the House the first and sixth article of the treaty.
'Whereas a good understanding [See fourth page] and union between the inhabitants of the said state and the Indians aforesaid are reciprocally necessary and convenient, as well on account of a friendly intercourse and trade, as for the purpose of peace and humanity; it is therefore, agreed and covenanted-
'1st. That all differences between the said parties, heretofore subsisting, shall cease and be forgotten.
6th. And lastly, they, the said headmen, warriors, and chiefs, whose hands and seals are hereunto affixed, do hereby, for themselves and for the nation they are empowered to and effectually represent, recognize, declare, and acknowledge, that all the lands, woods, waters, game, lying and being in the State, eastward of the line herein before particularly mentioned and described, is, are, and to belong, and of right appertain, to the people and government of the State of Georgia; and they, the Indians aforesaid, as well for themselves as the said nation, give up, release, alien, relinquish, and forever quit claim to the same, or any part thereof.'
Now, what would have been thought of the transaction, if, the day after signing this treaty and accepting this cession; Georgia had laid claim to all the rest of the land; had passed a law disposing of it; had gone into the country,(supposing her to have been, what, at that period, most assuredly was not, strong enough for that purpose) with an army of surveyors; and divided it out for distribution by a lottery? It would have been thought an unparalleled breach of good faith.
But I will go farther than this; Suppose there had been no treaty at all-not even a state of peace-suppose that the armies of Georgia had done, what, at that time, it was wholly impossible to do-suppose they had overrun and conquered the land, even then the laws of nations and civilized warfare would not have justified this measure. Why, Sir, as a war measure, and in the hot bed of victory, such a thing has never, in modern times, been heard of, as the forcible seizure of the entire domain of a conquered people, ' a partition of it into sections, the unoccupied part of which are to be immediately taken possession of, and the improved parts thrown into a lottery with the rest. It comes to the precedent of the Norman Conquest, and goes beyond the partition of Poland. I doubt if a single Polish proprietor has been disturbed in the possession of his estate, from the date of the first partition to the present day. Suppose that Russia and Austria and Prussia in addition to extending their laws over the Poles, had enacted a code, under which it was admitted, that they could not live, and cut up their lands, districts, and sections, thrown their estates into a lottery, granting to the proprietors no other privileges but that of occupancy, till they could be induced by legal duress and governmental persecution to emigrate to the deserts of Bucharia! What language would have furnished adequate terms for the condemnation of such a policy?
The very ground on which Georgia claims the right to pursue this course is the strongest reason, why she should not pursue it. Sir, she denies that they are independent separate community. She says they are her citizens or subjects; calls them 'her people;' constitutes them an integral part of the community;and then passes a law to distribute their lands by a lottery. Does not this show that injustice of the measure? Let her pass a law to dispose by lottery of the property of the people of Chatham and Effingham, of Richmond and Columbia; let her plant a 'fortunate drawer' at the door of each man's shop and house, and the gate of his plantation to worry him off to the foot of the Rocky Mountains. The very process of reasoning by which Georgia would withdraw the Cherokees from our protection can serve them only to bring them under her own, of all arguments against this oppressive policy.
But we live under a Federal Union, designed to bring the States, to a certain degree, under one government, and possessing tribunals of eminent jurisdiction, for the adjustment of controversies which are placed by the Constitution within the province of such tribunals. What is the aspect of this affair, in reference to this Federal Union, and the authority of its tribunals?
Let it then first be borne in mind that Georgia in 1789 voluntarily became a party to the Constitution, 'which is the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State; to the contrary notwithstanding;' and that it is also a provision of that Constitution or which Georgia is a voluntary party, that 'the judicial power of the U. S. Shall extend to all cases, in law and equity, arising under their authority.'
Under her new laws, Georgia has proceeded to take the life of an Indian, for a murder, alleged to have been committed on another Indian, within the Cherokee boundary. It belongs, in no degree, to my argument, to inquire into the guilt of this person. I have seen but an imperfect newspaper report of his trial, in a paper friendly to the policy of Georgia, which I mention only as authorizing the presumption, that the report is probably not strained against Georgia. From that paper it appears that Corn Tassel, (such is the name of this Indian; it is also the first Indian name subscribed to the great Hopewell treaty) was found guilty of murder, chiefly on evidence, which would not be admissible against the life of a white man. (I mean Indian evidence,) and on the testimony of a white man, whose evidence is contradicted by the Judge in his charge. Now, whatever maybe said against the admissibility of Indian testimony in cases of property, I am clear in a case of life and death as good evidence ought to be required to convict an Indian to death needs I think, as clear a warrant of credible evidence against him, as the jury that puts a white man to death. The other evidence to which I have alluded, is that of the officer who arrested Tassel, who testified that at first he talked only in the Indian language, but afterwards spoke English intelligibly. The Judge who sat in the trial, mentions it as a circumstance to be regretted that the prisoner at the bar 'could not understand him.'
But though I am inclined to think there was not evidence to establish the malice, I waive that point entirely and do not pretend that Tassel is an object of sympathy, I go upon the assumption, that he was guilty, though I do not think that proved on the trial as reported. This 'Unfortunate' being ( as he is justly called by Judge Clayton,) on his trial before a court and jury, whose language he did not understand, pleaded by his counsel to the jurisdiction of the court. The ground of this plea appears to have been, that, under the treaties between the United States are the Cherokees, the latter were independent of the laws of Georgia. This plea was reserved for the consideration of all the Judges. They overruled it, mainly on the ground, that these treaties were unconstitutional, and could not bind Georgia.
Here the momentous bearings of the question begin to appear.- Georgia decides, that numerous Indian treaties negotiated during nearly fifty years sanctioned by every branch of the General Government, under every administration, and by Georgia herself, at whose request and for whose benefit many of them were entered into, and all unconstitutional and void. Whence the Courts of Georgia derived the power to decide on the constitutionality of treaties and laws of the United States I do not know. Her Constitution does not give it to her, and if it did, it would be a void grant, for Georgia is a voluntary party to the Federal Constitution made prior to her own.
The right of deciding in cases arising under the Constitution, laws, and treaties, is one of the rights expressly granted by the People of Georgia to the Federal Judiciary. The allegation, that the Indian treaties are unconstitutional, is no more than might be made of any other treaties, that of Louisiana for instance, (which was at first supposed by Mr. Jefferson and Mr. Madison to require an amendment of the Constitution to carry it into effect,) and if the Judges of a State can entertain the question of the constitutionality of the Cherokee treaties, I see no reason why they cannot do it in the case of any others.
It will easily be supposed, that the unfortunate being whose life was at stake, would be disposed by his counsel to maintain the validity of these treaties; and he accordingly applies for that writ of error, which, under the Judiciary act, issues, as a matter of course, when duly demanded, this was a case arising under the law and the treaties, the validity of which was denied by Georgia, and affirmed on behalf of the Indian.
The citation issues in the usual form, the form in which it has been respected by the Courts of the most powerful and enlightened States of the Union, who understand and love their rights as well as Georgia. This writ the Legislature of Georgia instructs the Governor and all other officers; 'to disregard, and with it every mandate and process that has been or shall be served upon hi or them, purporting to proceed from the Chief Justice, or any Associate Justice of the Supreme Court of the United States for the purpose of arresting the criminal laws of this State.'
In other words, Georgia repeals for herself a considerable portion of the twenty fifth section of the Judiciary Act of Congress, and annuls in all criminal cases, the second section of the third article of the Constitution of the United States.
Georgia, on the principles she has now asserted, has only to make it penal to do any act or thing under a law of the United States, and she thereby acquires exclusive jurisdiction over the subject, and to annul the law.
This is a much more compendious process than a convention of the people of a state, elsewhere proposed. And almost at the moment that this House resolves, by a majority nearly unexampled, that it will not repeal the twenty fifth section of the Judiciary Act, Georgia repeals one half of that section, and of the clause of the Constitution on which it is founded.
Where is this to stop? Is it to stop anywhere? What laws of the United States have not been declared unconstitutional? What laws and treaties will not be acted on, as if they were unconstitutional, if a process so summary is permitted to obtain/
I will observe, in conclusion, that, till the validity of these treaties has been settled by that tribunal which is alone competent under the Constitution to entertain the question, and settled in favor of Georgia, Tassel could not be put to death by any lawful warrant. The very Judge who tried him is made, in the report to say, that he 'belongs to another nation'. And, till it is settled by the competent authority, that the other nation is subject to the laws of Georgia, the death of Tassel remains illegal. At the same time I admit there may be difficulties in this case. The Constitution is clear, but it is not certain that the Judiciary Act gives full force and effect to all the provisions of the Constitution.- But although there may be no remedy for the wrong done to the being whose life is taken, (if he has lost that life at a bar to which he was not amenable,) this want of remedy for the wrong proves nothing in favor of the right of Georgia. It is greatly to be lamented, that she had not imitated the best part of the New York precedent, and granted a pardon or reprieve to Tassel. As a first case, a case of life and death of an individual of a different nation and language, appealing to the faith of the Union, and asking only to be tried by that tribunal by which (if the treaties are indeed valid) he had right to be tried, it is greatly to be deplored that a little time could not have been granted.
I will only add, that as there was a United States' force in the country when Tassel was arrested; and as Congress had just enacted in a law which the President signed, that the treaties should not be violated, I think those troops would have been as well employed, in protecting the life of a fellow being, pending his appeal to the Courts of the United States, as in driving the Cherokees from their own mines.
And here I may suitably consider the plea, that Georgia has done no more in this matter than other States, and particularly New York. No argument is more apt to be fallacious, than the argument from analogy. There is great danger of mistaking slight and merely circumstantial points of resemblance, for entire parallelism. I will examine this case briefly, but fairly. I will admit the points where it is a precedent in favor of Georgia; and I will point out those where it is not; premising that if the legislation of Georgia violates law and treaty, it by no means follows that the Government of the United States may withhold the protection which it owes, and which is demanded by those who are the victims of that legislation, because New York has adopted similar acts of legislation.
It is a matter of surprise, too, if the legislation of New York affords a sanction to that of Georgia, that it was not insisted on sooner. Three great negotiations have been held by citizens of Georgia, since the New York law of 1822, with the Creeks or Cherokees, and this precedent was never pleaded, as far as I can find in the record of the negotiations.
Now let us compare the cases. New York, in 1822, passed a short law, extending her criminal jurisdiction over the dwindling remnants of tribes within her borders, and there she has stopped. She leaves her Indians as she found them. She makes no attempt, by severe penal enactments to break down the organization of their tribes. She has neither claimed nor surveyed their lands, nor seized their mines. As to the individual condemned by her Courts, Soo-non-gize, her Assembly pardoned him. Her law, I understand, has not since been acted upon;o and it is the opinion of the highest legal authorities in the State, that it leaves the rights and condition of the Indians, where it found them. Here then are points of great and vital difference.
The New York law, in its terms confined to crimes and offenses, was evidently intended, in its origin, to arm the State with power to protect the Indians, against the evil of imaginary and superstitious crimes; a power, as the event shows, designed to be called forth, only when such a peculiar occasion should require it. The Georgia Code is one of civil and criminal jurisdiction, the last of a series of measures, having for its great and viewed object to effect the removal of the Indians. Hence, while New York stops at the claim of criminal jurisdiction, and does not, in point of fact, enforce that; Georgia enacts the severest laws against the entire social existence of the tribe, claims their lands, seizes their mines, and substantially drives them from her borders. If New York had gone into the Seneca Reservation with a score of surveyors, declaring the alternative of removal to the West, or extinction, and drawing a lottery for their lands, the case would have been more nearly parallel. Accordingly we find in the last place, that the Senecas never invoked our protection, because no practiced evil was done or threatened; the Cherokees invoke our protection, because the choice is set before them, of subjection to State removal to a desert, where they believe they must die.
There is, therefore, the greatest difference in all the matters of fact, which give a character to the two cases. In point of equity and justice, the New York Precedent could not of course alter the case; as one wrong affords no justification of another.
I will here also answer the argument drawn from the example of the colonies and of the States, before the Constitution. The argument from the practice of the colonies is of two-fold aspect, looking to the question, as one of humanity and of right.
First, as to humanity. Grant that the treatment of the Indians by the colonies, was barbarous and cruel. We have lately been taunted with the fact, that when taken as prisoners of war they were sometimes sold as slaves to the West Indies; and our recollection has been refreshed with the circumstances, that, according to Cotton Mather, on occasion of storming an Indian fort, the huts within it took fire, and several of the wretched inmates were (as this author with detestable quaintness expresses it) 'Broiled' to death. These are the facts quoted against us. They were the incidents of a war of mutual extermination, between the Colonies and a powerful savage foe. But I let that pass.- What is gained by citing these facts? Suppose they prove the only thing they seem to prove, that the early settlers of New England were a blood-thirsty race, and treated the Indians barbarously. Is anything gained by Georgia and her sister States, by proving that fact? Those who would get an argument to support their policy, out of the fact, that in the seventeenth century, some Indians were sold to the West Indies as slaves, need not go so far back. The slave trade, till very lately, was carried on throughout the civilized world. All nations were stained with its built. The States of New England brought the slaves from Africa; the Southern States brought them into bondage. And what then? Is the traffic less atrocious; or is it inconsistent for anyone, North or South, at the present day, to denounce and reprobate it?
Let me not, however, be thought to admit the charge of barbarity against the early settlers of New England towards the Indians. Some incidents occurred, in the perilous conditions in which the Colonists, in the early periods of their settlements were, placed- which I surely will not vindicate; but their conduct towards the Indians in the main was honorable and kind. The charges against them, from whatever quarter, are substantially unjust. They had a right to come to this Continent; they were guided hither by the hand of the same Providence, that had planted the Indians before them. There was room for both. Our forefathers had a right to a part of the soil; to be obtained by honest dealing with the natives. I have never pretended that the Indian had an exclusive right to all the land he could see from the top of the mountain, or over which the deer may fly before him in the chase. But what follows from this admission? That after we have made an agreement with an Indian tribe, and got all we need, and guarantied the rest, we shall not be bound to the faith of our compact: I trust not.
How then is the question of right affected by the practice of the colonies? It is said they legislated over the Indians. But this is vague and general. I want something specific and distinct. Did they, after making a long series of treaties with the Indian tribes, fixing boundaries, accepting cessions, and guarantying unceded lands, did they turn around, declare those treaties null, break down the boundaries and seize upon the land, in time of profound peace, and under the pretence that the treaties were unconstitutional? This is the kind of precedents wanted; not one resting in mere political metaphysics.
But grant they did all this, (no part of which they did) and grant they did it, as independent States,a before the Constitution of 1789. All this would not help the argument. The States under the confederation, were clothed with many attributes of sovereignty, which they gave up on entering the Union. They coined money, enacted navigation laws, imposed tariffs to protect manufactures. The right to treat with the independent tribes of Indians was not one of the rights ceded to the States, although conflicts existed between the Congress and some of the States as to the extent of their power in this respect. But all the sovereign powers I have enumerated were given up by the States in adopting the Constitution. When Georgia adopted the Constitution the Treaty of Hopewell was in existence, containing the most decisive guaranties of the rights of the Cherokees. Before the Constitution, Georgia claimed the right of treating with the Indians; but afterwards never. She frequently has requested the United States to treat for her benefit, and the United States have done it. And now the argument is, that Georgia has a right to annul all these treaties, because in former times, the colonies or the States extended their laws over the Indians!
But it is said that the late administration pursued the same policy of removing the Indians, and the friends of that administration are charged with inconsistency in opposing it. No one denies, that the last administration earnestly desired the removal of the Indians. It saw, what everybody sees, the inconvenience incident to the residence of the southwestern tribes in the neighborhood of the States, so resolutely bent on acquiring their lands. It is well known that the project of colonizing them west of the Mississippi, was submitted by Mr. Monroe to Congress, near the close of his administration and again with [See second page.] some modifications by Mr. Adams in 1823. But it is a matter of equal notoriety, that neither the last administration, nor that which preceded it, contemplated the attainment of the project in any other way than by the joint and voluntary cooperation of the Indians themselves and the United States. The idea that the States could annul the treaties was never countenanced by the President for a moment. It cannot surely be forgotten in what emphatic language, on a very trying occasion, Mr. Adams avowed his resolution to support the Indians in their rights secured to them by treaty and by law.
Georgia had passed a law authorizing the survey of a portion of Creek lands, ceded by the treaty of the Indian Springs, which the Senate of the United States had annulled and not ceded by that of Washington. Mr. adams immediately ordered the arrest and prosecution of the Surveyors. Georgia declared a determination to support her surveyors by military force; and the President submitted the subject to Congress. In the message sent for that purpose, he used this language. 'It ought not, however, to be disguised that the act of the legislature of Georgia under the construction given to it by the Governor of that State and the surveys made or attempted by his authority beyond the boundary secured by the treaty of Washington of April last, to the Creek Indians, are in direct violation of the supreme law of this land, set forth in a treaty, which has received all the sanctions provided by the Constitution, which we have sworn to support and maintain. In the present instance, it is my duty to say, that if the legislative and executive authorities of the State of Georgia should persevere in acts of encroachment, upon the territories secured by a solemn treaty to the Indians, and the laws of the U. S. remain unaltered, a superadded obligation, even higher than that of human authority, will compel the executive of the United States to enforce the law, and fulfil the duties of the nation, by all the force committed for that purpose of his charge.'
I may be permitted to add, that this message and other important documents in the Georgia controversy, were committed to a Select Committee of this House, of which I had the honor to be the Chairman, from which a Report proceeded, supporting in all points the principles laid down by the President, in the message I have just cited. It is obvious, therefore, that there is no foundation for the charge that the last administration was friendly to the policy of removing the Indians as now pursued. In fact, it is a matter of surprise that a charge so notoriously groundless should be adventured. Had Mr. Adams done what is now pretended; had he countenanced Georgia, Alabama, and Mississippi in their policy, the South would never have been consolidated, as it was against him and I much doubt if the Chair of State would have been filled as it now is.
Sir, I think I have made out my case. I have shown that the Cherokee Indians have been invaded in the territory and rights, secured to them by treaty and by law. In addition to the particulars which I have mentioned, there are others set forth in their memorial, well deserving the consideration of the House. Most of these, for want of time, I must pass over; but on two of them I will dwell for a moment. Georgia has contended for a boundary line, and the treaty of the Indian Springs of 1825 (and in contravention of that of 1826 at Washington, by which the Treaty of the Indian Springs was annulled) which would take a million of acres of land from the Cherokees. The ground of this claim on the part of Georgia is, that the ancient boundary between the Creeks and the Cherokees was greatly to the north of the recent boundary; and that the Creeks and Cherokees, by compact between themselves, had no right to change it. If this were true; it would not effect the case, because the Treaty of the Indians Springs which gave Georgia Creeks lands being fraudulent in itself, could never have given any rights and was solemnly annulled by the Senate, the present Secretary of War voting in favor of annulling it. Nevertheless passing by the Treaty of Washington which fixed the boundary, and acting under that of the Indian Springs which the Senate declared void, the President has undertaken to settle a new boundary, equally to the dissatisfaction of the Cherokees and Georgia; and has actually dispossessed the Cherokees, by a simple executive order, enforcing a treaty declared by the Senate to be fraudulent, null and void, of 464,646 acres of land; occupied as they allege by their tribe for generations.
I might also speak of the countenance which has been given to intruders, in establishing themselves on lands vacated by the emigrants to Arkansas, by which serious evils and constant vexations are occasioned to the Cherokees; but I forbear, for want of time, to dwell on the subject.
Nor is the order given last Summer to change the mode in which the annuities are paid, less vexations. It has been called, and I think with justice, a small business. The annuity due to the Cherokees amounts I believe to by 6,666 dollars. It is by treaty due to the nation. Since the Cherokees took our advise, and established a regular government, it has been paid to the Treasurer of the nation. It constitutes a considerable part of the little revenue of the tribe. The President has seen fit to order its payment to the Treasurer to be discontinued, and to be made hereafter to the Indians individually. It amounts to about forty-two cents for each of the population. It must of course be paid in specie. A part of the tribe live a hundred or two miles from the agency. Shall it be sent to them? shall they travel this distance to receive their few cents? What is the object of this change? I have understood that it has been stated by the Secretary of War, in a letter published in the course of the last summer, that complaints had been made, that some of the Indians are defrauded by their chiefs of their share. However this may be with other tribes to which the same change extends, and of this I know nothing, I believe it is not so with the Cherokees. I have seen a letter from Mr. Montgomery, the Cherokee agent, dated last October, in which he declares that no such complaint has ever come to his knowledge. I hope there is no reason for the suggestion which has been made on very good authority, that this change in the mode of paying the annuities has been ordered, to deprive the Cherokee Government of the funds necessary to enable them to carry on the arduous and discouraging contest in which they are now involved with the Executive authorities of the United States, and with Georgia.
I have confided myself, for the reasons stated in the outset, almost entirely to the case of the Cherokees. There is a memorial from the Creeks on our tables, from which it would appear, that they suffer from the same policy. They are overrun with intruders, whom the Government of the United States does not remove; and the legislation of Alabama has been extended over them. I find the following account of it in a letter, apparently by a member of the legislature of Alabama : 'Tuscaloosa, (Al.) 9th January. The Indian bill, which has been passed in the House of Representatives provides for extending over the different tribes within the territorial limits, the civil and criminal laws of the State, prohibiting them from enacting any laws of their own-taxes their black population between the ages of twelve and sixty, with a poll tax of fifty cents. The Choctaw and the Chickasaw nations are however, to be exempt from the operation of this act, so soon as the treaty concluded by their respective nations with the United States shall have been ratified by the Senate. This was a favorite amendment of mine, and it was all I could do to soften, in this very small degree, the rigor of the law.'*
With the Chickasaws and Choctaws, treaties have been concluded under the law of last session, and, as I will demonstrate, in direct violation of its provisions.
Let me revert a moment to the history of the proviso contained in that law. The President's message took the ground, that the Indians could not be protected against the legislation of the State. The reports of the Committee on Indian Affairs, in the two Houses, took the same ground. The bill did not directly grapple with the point; and the great objection to the bill has, that it played into the hands of that policy. The House, as the event proved, was nearly in equilibria; the bill passed by a vote of 102 to 97. In this state of division in the House, the gentleman from Pennsylvania ( Mr. Ramsey) moved an amendment which prevailed. It provided that nothing in this act contained should be construed, as authorizing or directing the violation of any treaty between the United States and any Indian tribe.' Without this proviso I am persuaded the bill could not have passed.
By this clause, the House solemnly provided that the treaties were constitutional, and could not be violated. And it, as it would seem, the President thinks them unconstitutional, I do not understand how he could sign the bill. He though proper, by special message to guard the House against even construing a law passed at the last session, in a sense deemed by him unconstitutional; and in appending his signature to it, it would appear that he has endorsed, upon the official roll of the law, a sort of qualifying reference to that message; an entirely novel, singular, and , as I think, unconstitutional step. In this case, he signs a bill, in which the constitutionality of the treaties is expressly recognized, although he deems them all null inoperative.
With this act in his hand, and the half-million in his pocket; the Secretary goes down to the Chickasaws and Choctaws, tells them that the President will not protect them from the legislation of the States, and `under these circumstances,' negotiates the new treaties. These treaties have not been submitted, (not being as yet ratified,) to the House of Representatives. From the best sources of information to which I have had access, I have been led to the opinion, that the tine of the Secretary's communication with the Choctaws, was of the most urgent and imperative character.
No one denies that the extension of State laws over the tribes is, of itself, a violation of all the treaties; but in the case of the Choctaws, there were peculiar provisions in their treaties, which are contravened and broken. By the treaty of Doak's Stand, negotiated with that tribe, in 1820 by the present Chief Magistrate and the worthy gentleman (Gen. HINDS) who now represents the State of Mississippi, it was in their fourth article, stipulated as follows:
'The boundaries here established between the Choctaw Indians and the United States on this side of the Mississippi River, shall remain without alteration until the period at which said nation shall become so civilized and enlightened as to be made citizens of the United States, and Congress shall lay off a limited parcel of land, for the benefit of each family and individual in the nation!'
So unequivocal was the condition of the Choctaws, under these treaties that the State of Mississippi decided, in 1826, that they had not a right to legislate for their own citizens, wandering into the Choctaw nation, fugitives from the justice of the State.
In the face of these treaties, in the fact of the proviso of the law, under which he was acting, refusing expressly to authorize their violation, the Secretary goes to the Choctaws tells them in substance that the old treaties will be regarded by the Executive of the United States as unconstitutional, and knowing that their consent to remove depends upon this one fact and no other, he assures them the president will not enforce the treaties, and under these circumstances induces a portion of them, (how large a portion I know not,) to cede the lands of the nation. To effect this object, there is great reason to believe, that very large temptations were offered to the individuals possessing influence in the tribe.
Now I say, the law of the last session was conditional; and the appropriation contained in it was conditionally made.
The condition was that the Treaties should not be violated.
It is known to every gentleman in the House, that the sole consideration, which induced the Choctaws to agree to remove, was the assurance of the Secretary, that the Government of the United States would not protect them from the violation of the treaties.
It is unnecessary to press this matter much further. I have stated most of the grounds on which I rest one propriety and expediency of adopting my motion.
It is admitted by the States, that they consider these treaties as unconstitutional, and act accordingly.
The President acquiesces in this course on the part of the States, although it is his sole duty in reference to this matter to enforce the law, of which these treaties are a part.
Congress last winter made express provision against their violation.
They are violated. Let us then either make provision to execute, or let us abrogate them avowedly.
It is due to consistency, good faith, and common honesty.
The President has, with his annual message, sent us a letter from the Superintendent of the Bureau of Indian Affairs in which that officer states, that the law of 1802 `is the principal one which governs all our relations with the Indian Tribes.' and recommends its revisal and modification to suit the changes produced by subsequent treaties and other causes. The same message is accompanied by a letter from the Secretary of War, to which I have already referred; telling us that the provisions of the law are unconstitutional, and the President neglects to enforce them in favor of those tribes, over which the States have extended their laws.
Let us then, the Congress of the United States, if we think this law is constitutional, make a provision to execute it; if we think it is defective, let us amend it. If we think it is unconstitutional, let us repeal it. That law, by which all our Indian relations are regulated ought not surely to remain in its present state.
If the treaties are constitutional, let us enforce them. If they are unconstitutional, let us abrogate them; let us repeal the proviso of the last Session; declare them null and void and make what compensation we can to the deluded beings, who relying upon our faith, have at different periods, ceded to us mighty and fertile regions, as a consideration for the guaranty contained.
Sir, this is a dreadful affair, Heaven is my witness, that I would rather palliate than magnify its character; but I can think of nothing so nearly parallel to it, as the conduct of the British Government towards the native inhabitants of St. Vincents. This is a precedent from one of the worst periods of the British Government; till that of the Administration which drove America into revolution. It was a transaction on a small scale, in an obscure Island, and towards a handful of men. But it left an indelible stigma on those responsible for it; a stigma on an Administration, which nothing moderately unjust could disgrace; a stigma which would have been as notorious as it was indelible, but for the overshadowing enormity of the treatment of America, which succeeded. If we proceed in the path; if we now bring this stain on our annals; if we suffer this cold and dark eclipse to come over the bright sun of our national honor, I see not how it can ever pass off; it will be as eternal, as it is total.
Sir, I will not believe that Georgia will persevere. She will not, for this poor corner, scarcely visible on the map of he broad and fertile domains, permit a reproach to be cast upon her and the whole union to the end of time.
As for the character of the country, to which it is proposed to remove the Indians, I want only light. It was all we asked last session; all I ask now. I quoted then all the authorities, favorable as well as unfavorable, with which I was acquainted. The friends of the policy refused us the only means of getting authentic information on the subject, a commission of respectable citizens of the United States sent out for the purpose. Since the subject was discussed last session, two more witnesses not then heard, have spoken. Dr James who was appointed to accompany Col. Long on his tour of exploration in the region, has thus expressed himself:
'The region to which Mr. McCoy proposes to remove the Indians would, such is its naked inhospitable character, soon reduce civilized men who should be confined to it, to barbarism.'
In 1827, before this question was controverted, a report was made by the commissioners appointed to lay out a road from the western boundary of Missouri to Santa Fe in New Mexico. These commissioners report, that, in the whole line of their march, extending seven hundred miles, if all the wood which they passed were collected into one forest, it would not exceed a belt of trees three miles in width!
But all this does not change the question., It merely suggests the possibility of an alternative of evil. If all the land were as fertile, as one small part of it probably is,; if it were as safe from the wild tribes of the desert, as it is notoriously exposed; if wood and water were as abundant as they are confessedly scarce; if it were the paradise, which it is not; so much the worse for the Indians, the miserable victims whom we are going to delude into it. The idea that they can there be safe, is perfectly chimerical; and every argument to show that the land is good, is an argument of demonstration that they will soon be driven from it. If all these treaties cannot save them, nothing can. What pledges can we give stronger than we have given?
It is partly for this reason that I urge the House to settle the question; and the more plainly we meet it if we settle it against the Indians the more humane will be our conduct. If we intend to be faithless to all these compacts, let our want of faith be made as signal and manifest as it can be.
Here, at the center of the Nation, beneath the portals of the Capitol, let us solemnly auspicate the new era of violated promises and tarnished faith. Let us kindle a grand council fire, not of treaties made and ratified, but of treaties annulled and broken. Let us send to our archives for the worthless parchments, and burn them in the face of day. There will be some yearnings of humanity,as we perform the solemn act. They were negotiated for valuable considerations; we keep the consideration and break the bond. One gave peace to our afflicted frontier, another protected our infant settlements. Many were made when we were weak; nearly all at our request. Many of them were negotiated under the instructions of Washington, of Adams, and of Jefferson-the fathers of our liberty. They are gone, and, and will not witness the spectacle; but our present Chief Magistrate, as he lays them, one by one, on the fire, will see his won name subscribed to a goodly number of them.
Sir, they ought to be destroyed, as a warning to the Indians to make no more compacts with us. The President tells us that the Choctaw treaty is probably the las we shall make with them. This is well; though, if they remain on our soil, I do not see how future treaties are to be avoided. But I trust it is the last we shall make with them; that they will place themselves beyond the reach of our treaties and our laws; of our promises and our mode of keeping them.
There is one sad alleviation of the fate of some of these tribes. When the possession of the rural population of Italy were parcelled out among the Roman legions, by a policy too similar to that which we are now pursuing towards the Indians, it was the pathetic enquiry of a poor shepherd, who was driven from his native soil, his cultivated arm, and the roof of his infancy,
Impius haec tam culta novalia miles habebit
Barbarus has segetes? En queis consevimus agros?
It will be some sad alleviation of the fate of these dependent allies, (Pg. 3) whom we are urging into the western wilderness that their lands and their houses, their fields and their pastures, their civilized, improved and Christian homes, will pass into the possession of their civilized and Christian brethren; who, I doubt not, will do their best to mitigate the bitterness of the cup. At some future day, should they escape the destruction, which as I think impends over them beyond the Mississippi, some of their children will perhaps be moved by the desire to undertake a pious pilgrimage to the seats from which their fathers were removed. The children of the exile will not,I know, be turned unkindly from the door of the child of the 'fortunate drawer.' Here, they will say, are the roofs beneath which our parents were born, and for which our white brethren cast lots; here are the sods beneath which the ashes of our forefathers are laid; and there are the ruins of the Council House, where the faith of our Great Father was solemnly pledged to protect us!
Sir, it is for this Congress to say, whether such is the futurity, we will entail on these dependent tribes. If they must go, let it not be to any spot within the United States. They are not safe; they cannot bind us , they cannot trust us. We shall solemnly promise, but we shall break our word. We shall sign and seal, but we shall not perform. Let them go to Texas; let them join the Comanches; for their sakes and ours: for theirs to escape the disasters of another removal; for ours, that we may be spared its shame.
Now, Sir, I have done my duty. I have intended nothing offensive to any man or body of men. I have aimed only to speak the truth honestly and earnestly, but not opprobriously. If, in the heat of the moment, I have uttered anything which goes beyond this limits, I wish it unsaid.
I am not without hopes that Congress will yet throw its broad shield over these, our fellow beings, who look to us for protection; being perfectly satisfied that, if the question would be presented free from all extraneous considerations to the decision of the House, it would be for the preservation of the treaties.
But however this may be, I am confident that the time is not far distant when the people will be all but unanimous in this matter. I believe that even now, could it be freed from all delusions coloring, and submitted to the mighty company o=in the Union of sober unprejudiced, disinterested men, their voice would reach us, like a rushing storm from Heaven. Rather than have this Hall made the theater of such a disastrous violation of the National Faith, they would speak to us in a tone which would shake these mossy columns to their base, and pile this canopy in heaps on our heads.
*Since this Speech was delivered, I have understood that bills have been introduced in both branches of the Legislature of Alabama, to repeal the law extending the jurisdiction of the State over the Indians; with what success I am not informed.