HOUSE OF REPRESENTATIVES,
March 1, 1831
The bill 'making appropriations for the Indian Department for the year one thousand eight hundred and thirty-one' being under consideration, Mr. BATES of Mass. moved the following amendment: 'That the annuities to the Indian nations or tribes shall be paid hereafter in the way and manner they have usually been paid since the grant thereof, or until said nations or tribes shall respectively otherwise direct.'
Mr. BATES said, he offered this amendment in Committee of the Whole, and in deference to the wishes of the Committee of Ways and Means, and upon the assurance that an opportunity should be afforded in the House, he forbore then to state the ground of it. At this late hour of the day, and late day of the session, said Mr. B., I will confine myself strictly to the point, because I do not intend to afford the slightest apology or occasion for a demand of the previous question, as I wish to obtain the judgment of the House distinctly upon the proposition involved in the amendment proposed.
Since the foundation of the Government, said Mr. B., the practice has been one and undeviating-that of paying these Indian annuities to the nations, and not to the individuals composing the nations. This Government has never intermeddled with the disbursement or distribution of them. Sometimes they have been applied by the natives partly for the support of their Government, for the maintenance of their schools, the purchase of agricultural implements, or for any other purpose which was most pleasing to themselves. The annuity to the Cherokees has latterly been paid in to the public treasury of that nation; the annuity to the Creeks has been paid to the headmen of the different towns; and the annuities to the other nations have been paid in the way and manner they thought proper to direct.
In June last an order was issued by the Executive reversing this ancient practice. I will send the order to the Clerk, and thank him to read it. It is a s follows:
DEPARTMENT OF WAR.
18 June, 1830
Sir- The President directs that the practice of paying annuities to the Treasurer of the Cherokee Nation shall henceforth be discontinued; and that, with a view to secure to the mass of the nation their proper proportion of such annuity, the same shall be hereafter paid in every case to the individual respectively entitled that is to say to the chiefs and warriors and common Indians, and their families in the ration in which these several classes are entitles; where there are Indians without families, the payments are to be made to them personally, and not to their chiefs. This mode of distribution is not, under any circumstances to be departed from.
I am, 'c.
P. G. RANDOLPH.
Act. Secretary of War.
TO COL. HUGH MONTGOMERY,
Cherokee Agent, Calhoon, Ten.
This order was not confined to the Cherokees, but, in terms, was issued to the other nations. In January last, the Cherokee delegation were informed by the War Department, 'that the order referred to is not applicable to the annuities of their nation exclusively, but to those of all other tribes entitled to them.'
To say nothing of the difficulty arising from the ambiguous phraseology of this order, the House perceives at once that it takes from the Indian nations the right, and assumes the burden of distributing the Indian annuities. It makes them-chiefs, warriors, and all- the more passive recipients of your bounty, in such proportion as the Executive may see fit to dole out to them.
But, in the first place, I would respectfully inquire, how is this order to be executed? Among whom are the authorities to be distributed? Are females to be included? Or if only males, males of what age? What is to be the ratio of distribution? The order says,'to chiefs, warriors, Indians with families and Indians without families.' Is the chief to have more than the warrior? the warrior than the Indian? or the Indian with a family more than the Indian without a family? In fixing the ratio of distribution is rank or property to be taken into the account? Whatever course is pursued by reason that some must die and some will be born, the House perceives that at least an annual census will be indispensable; for it these annuities are due to the people individually and not to the nation, exact justice, must be done to each. Well Sir, this somewhat difficult preliminary business being settled, let me suppose the day of payment to have arrived. The amount of the annuity exceeds by a fraction two hundred and forty-five thousand dollars. The annuity to the Cherokees is between six and seven thousand. If the distribution be made according to numbers without reference to rank, property, or condition each Cherokee will receive about forty cents as his share.
The annuities must, therefore, be paid in silver or copper coin, the transportation of which will be a heavy expense. The territory of the Cherokees does not vary much from two hundred by eighty miles in extent, and the agency is established in the northwest corner of it. Now sir, let me suppose that the agent, Col. Montgomery, has received his money, and with his wagon or mules laden, is on his way, making his annual visitation to each member of the tribe. Perhaps it is not too much to say that he will need a guard by night at least, if not to protect himself, to protect his treasure. But I shall be told that this is not the plan; that the agent is not to go to the people, but that the people are to come to him. Well, sir, be it so. At the time appointed the Cherokees come to the agent, at his agency house, some of them a distance of two hundred miles--upon an average near one hundred. Now, the first thought that occurs to the mind is that a single share-FORTY CENTS- will not pay the expense of the journey, much less the loss of time in making it. The next is, that, for such a numerous and, I may add troublesome and dangerous assemblage, of men, extensive provisions must be made which will add another item to the present enormous amount of our Indian appropriations. But, to proceed. Few of the Indians, except those who have had intercourse with the whites, have more than one name, and that has reference frequently to some living or material object. There are, for instance many whose name, in English, means raccoon, or fox, or bird. Now sir, I will suppose that all of the same cognomen come at the same time to receive their portions of the annuity; there are three or four hundred Raccoons. The agent pays the senior. What sort of a voucher is he to take? The Indian cannot write, he can make the Raccoon mark--that is all. The others come on in succession; and, before the payment is half closed, those whose business has been despatched, disguised by new paint and new ornaments, return. Then another class, still, who have become entitled since the last census and for whom there is no money. And they become the children of those who have died since the last census, claiming their fathers' share, and each child his share of that share. After the Raccoons, then come the Foxes, and the Birds, and all the other living things, or material objects. I venture to say, that the Secretary himself before half meridian, would throw down his money bags, and be off for Tennessee. What is to protect the agent from endless imposition? or the Indians from endless frauds? How can the agent make the payments? or, if he can, how produce the requisite vouchers? It is a plan expensive and troublesome to us; vexations and ruinous to the Indians. This order makes the annuity a debt due to individuals; you must, in justice, therefore see it paid to them. Hence we shall have a new class of private claims upon this Government, out-numbering all others.
But sir, I deny the right of the Executive to make this order. These annuities are debts due to the Indians- not gratuities. They are debts for which you have the value received. You owe them. Your relation to them is that of debtor, not master. They are not only debts, but they are debts due to nations. They are recognized as such by every treaty--not as debts due to individuals, but, in terms, to nations. They are debts due nations who have a government of their own, and want not our interposition in their affairs. The Cherokees, the Creeks, and Chickasaws are well known. The Secretary of War tells us, that, in the Choctaw Nation 'there are three divisions, each of which is governed by a chief, who, within his limits, acts, independently of the others. In his government he is aided by minor and subordinate chiefs called captains, each of whom acts, within his particular sphere, distinct. The people are subordinate to the Captains, the captains to the chiefs.' And all the other nations have a government of some sort-such as they chose-one that satisfies them-and this should satisfy us. Now sir, I demand by what right do we undertake to say that these annuities shall be paid to individuals? Might we not as well have said that the purchase money of Louisiana should be paid to the citizens of France? Or may we not as well now say that the debts due the States of this Union shall be paid, not to the order of the Government, not into the State Treasury, but directly to the People? And let but the Executive send agents and sub-agents enough into the States, and they will find among the ignorant, the disaffected, the servile, and the sycophantic, those who will approve the measure, and, if need be, implore it. Sir, you have no right, but the right of the strongest, the right of him who puts hand upon the hilt of his sword for his proof. You have the power- the 'agent's power'- that is all. Will the House hear the opinion of Mr. Jefferson upon this subject? In 1808 he spoke to the Chiefs of the Upper Cherokee towns as follows;
complain that you do not receive your just proportion of annuities we pay your nation-that the chiefs of the lower towns take for them more than their share. My children, this distribution is made by the authority of the Cherokee Nation, and according to their own rules, over which we have no control. We do our duty in delivering the annuities to the head men of the nation and we pretend to no authority over them, to no right of directing how they are to be distributed.
These are the correct principles upon this subject of which one would think the practice of this Government for forty years independent of the terms of your bond, would be satisfactory proof as of the wisdom of which it has been a continued illustration.
I might stop here, but I should do injustice to the claims of the Indian nations if I were to omit to state briefly the effect of this order upon them. I will not speak of its object. It is known to this House, to the country, and to the world, that the Cherokees are engaged in a most unequal conflict for their existence as a nation. They claim of the United States the execution of the Indian treaties which guaranty to them protection and the execution of the intercourse law of 1802, in which the provisions of those treaties are embodied. Georgia has decided that these treaties as also the law, are unconstitutional and void. The executive has confirmed that decision, and refuses to execute them. Thus the Cherokees are abandoned to their fate. In order to try this important, and to them and to us interesting and momentous question, the Cherokees, in a case in the Courts of Georgia in which one of the tribe was put on trial for his life, for an offence committed within the jurisdiction of the Cherokee Nation, caused those treaties to be pleaded which, if constitutional ousted Georgia of her jurisdiction of the case, and turned the criminal over to the Courts of his own nation, to be punished according to the laws of his own People. The Courts of Georgia decided that the treaties were unconstitutional, and condemned the prisoner to death. To bring the question under the revision of the Supreme Court of the United States - a constitutional question under the treaties of the United States, and therefore most appropriately to be examined and decided there- a writ of error was brought, according to the provisions of existing law, of which Georgia had notice, and which Georgia defeated by executing the Cherokee. This execution was against law, if there be any force in the Indian treaties, or in the intercourse law of 1802. Thus defeated by such an act, the Cherokees have applied to the Supreme Court for an injunction against Georgia to stay her hand. Now, permit me to pause here for a moment and inquire, had the Cherokees declined this forum, and refused to submit this question to its decision, would not the world have said it was because they had no confidence in the justice of their cause? And the Cherokees might well have answered-We hold your treaties, for which we have paid you-we have parted with out land, and you hold it by virtue of them. Down to these disastrous times you have always considered them as valid; and acted upon them as valid. The Supreme Court is alien to us, we had no agency in its formation-can have no influence with nor control over it; its interest and bias will be in favor of your People, and against us. All this they might have said. Yet in the strong confidence they feel in the truth and justice of their cause, and in the integrity, the honor, independence of the Court, they seek this reference of the question, and Georgia---declines it! Nay, she insists upon the exclusive right in virtue of her State sovereignty to settle this question finally and irreversibly for herself, and by her own Courts, the judges of which are elected periodically by her own citizens- are imbued, I will not say inflamed, with her own feelings-swayed by her own interests, having a common share in the wheel of the lottery that is to make partition and distribution of the spoils of the nation at their bar, and against which the treaties and the laws they annul, are the only interposing barrier and defence.
Against this the Cherokees in their weakness can only protest, and they do protest and claim either the execution of the treaties or a decision of your now (sic) court upon their constitutionality. The Executive refuses the one, and Georgia opposes, and will, if possible defeat the other. In this anomalous condition of things, it became necessary for them to employ counsel, and to incur many and heavy expenses; and when their delegation left for Washington, the Legislative Council of the Cherokee Nation gave them authority to draw for such part of the annuity due from the United States as the exigency of their case might require. I have the order before me; there is no question as to the power. They did draw, and payment was refused, and still is refused by the Executive. At the same time, the Creek Delegation have been paid so far as they needed for their expenses, and so far as the Nation owed for the education of the Creek Children upon Col. Johnson's farm in Kentucky.' But even the Creeks, as I am well informed, were refused, until assurance was given that they were not here co-operating with the Cherokees. The House therefore perceives, that this order cuts off at once the resources of the Cherokees, and as far as this Government can do it; and, at this crisis of their affairs, takes from them the means of defence, and denudes them for sacrifice. The further effect of this order will be to create a severalty and individuality of interest throughout all the Indian Nations, that will weaken the mutual dependence and destroy the subsisting harmony among chiefs, warriors, and people; bringing the agents and sub-agents of the United States into contact with every individual native, and affording them an opportunity, if they shall be base enough to use it, to distract, confound, and break them up forever. I beg the House, therefore, to consider the nature and extent of our obligations to these Tribes, and whether it is not due to justice, and to our own honor, if nothing be due to them, to interfere in their behalf, at least so far as this amendment goes.
I have thus spoken briefly of the tendency and effect of this order. Allow me to inquire, in conclusion, what necessity or occasion there is for it? The Secretary has given us the rules by which his department is governed. Some of the Choctaw Nation, not satisfied with the late treaty, undertook to depose one of their Chiefs and to elect another- They have noticed to the War Department of what they had done.- The secretary informed them that 'this Government means not to interfere with their manner of self government'-- it cannot recognize what has 'been done by a few- when chosen by a majority of the division, and that fact certified by their General Council, the Chiefs will be recognized.' Very properly the Secretary here says that the complainants and acts of individuals cannot be regarded, and nothing short of the doings of the Nation in 'General Council', duly 'certified' will form a proper basis for the action, or interposition of this Government.
The opinion of Mr. Jefferson, which I have quoted, is to the same effect. Whatever complaints therefore, may have come from individuals, or from agents, or sub-agents, this order was not issued in consequence of them. But so far as the Cherokees are concerned, I have it in my power to say, and to prove, that no complaints have been made. In July last, the 12th day, Col.Montgomery, the Agent, understanding 'that there was to be a special meeting of General Council of the Cherokee Nation,' enclosed to the Chiefs a copy of the order of June, with a request 'that the necessary arrangements be made by the nation for the future reception of the annuities, so that each Indian might get his share, agreeably to that order.' On the 17th July, the representatives of all the people of the Cherokee Nation convened in general council, answered: 'That the United States stood bound to pay the money to the `nation' and not to the individuals of the nation.' As to its future reception, they say- 'that the nation has already made the arrangement for that, in its constitution and laws; and to them the Agent is referred.' That arrangement is, that the annuities shall be paid into the treasury for the use of the nation. And they enter 'their solemn protest against the distribution of the annuities in the way contemplated by the Government, as a violation of the letter and spirit of the treaties subsisting between the United States and them,' and decline making any further, or other order. Of all this the Agent had notice; but not knowing what complaints might have been made, the Delegation addressed a letter to Col. Montgomery, the resident agent of the United States in the Cherokee Nation; to which under date of September 20, 1830 he replies: 'I will state, that no complaints have passed through me to the Executive, or any other person, either from the Indians, or any other person, on the subject of the distribution of the annuities.' I hold the letter in my hand. Now, sir, what reason can be assigned to justify the order of June last, or a persistence in that order? I am unable to perceive any reason which will bear the scrutiny of this House. It is a wide departure from the established and beaten way for the Government-a way safe and convenient for us-a way familiar to the Indian nations-without their consent certainly, only the right way. I will only add for recapitulation that it will be difficult, if not impossible, to execute the order. That this government has no right to issue such an order; that it will be prejudicial to the Indian nations and particularly the Cherokees--malign in all its influences--and that it is uncalled for by any new exigency, or by any one Indian tribe, and is unjustifiable upon any principle consistent with our obligation, our convenience, or a just economy in the management of our Indian affairs.