Cherokee Phoenix


Published September, 10, 1831

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of the Hon.Jabez Huntington, Representative from Connecticut, delivered in the House of Representatives, sitting as in committee of the whole, on the Bill for the Removal of the Indians, Tuesday, May 18, 1830

Mr. Chairman: If the bill for which this has been substituted, though nearly identical with it, had been accompanied by a report from the committee, confined to the statement of facts and principles connected with what are said to be the objects of the bill itself, I should not have troubled the House with any remarks upon it. I would not have mingled in a debate which would then have been limited to the expediency of adopting the legislative provisions proposed to be enacted. But as the committee have reported the bill 'in conformity with the suggestions contained in the report, and to effect the object recommended in the message of the President;' as that report, and that message, contain sentiments with which I do not accord; as that report, and they advance principles, which in my judgment are not tenable-principles which, if I understand them correctly, deprive the Indian tribes, to which that are applied, of rights well defined, long enjoyed, and secured and guarantied by the most solemn compacts, and the plighted faith of a nation, which hitherto has been, and always, I trust, will be, jealous of its own honor, and which will not set the example of a Christian nation disregarding its own engagements because they have been entered into with a weak defenseless, unprotected people, I have not been willing to give a silent vote upon the proposition now before us. My own sense of duty, and the sentiments of a great portion of my constituents, who take a deep interest in this subject, demand of me, that I should express their opinion and mine, on a topic which is connected with the honor of our common country, and the welfare of a race once powerful, but now weak, and looking to us with anxiety, but not without hope, for that protection which the faith of the government is pledged to afford.

Before I enter into the examination of what are called, in the report, 'the pretensions of the Indians, and of the obstacles which are considered as being in the way of their indulgence by the government.' I solicit the attention of the committee to the language of the executive, in his message at the opening of the session, and to the construction or commentary which has been put upon it, in another place. I shall examine it with all the respect which is due to the chief magistrate of this nation, and to the elevated and honorable station which he occupies; but at the same time, and holding his advisors responsible for it, I shall make this examination with all the freedom of a representative of the people, sworn to support the constitution of the U. S. I noticed with much pleasure in the inaugural address of the present executive, the following expressive sentence:- 'It will be my sincere ' constant desire to observe towards the Indian tribes within our limits a just and liberal policy; and to give that humane and considerate attention to their rights and their wants which is consistent with the habits of our government and the feelings of our people.' How far this pledge has been observed, will be seen in the progress of this discussion.

In the message, Congress are informed, that the President has been called on by a portion of the southern tribes for protection, in the consequence of the extension, by the States of Georgia and Alabama, of their laws over these tribes; that, in an answer to this application, he stated to them, that their attempt to establish an independent government would not be countenanced by the executive of the United States; that it was too late to inquire whether it was just for the United States to include these Indians in their territory within the bounds of new States, whose limits they could control; and that they should be distinctly informed, that, if they remained within the limits of the States, they must be subject to their laws. The same opinions are advanced, in the letter of the secretary of the war department to the Cherokee delegation, dated April 18, 1829, in which they are told, by order of the president, that the State of Georgia has extended over their country her legislative enactments, in virtue of her authority as a sovereign, independent State, which she and every State embraced in the confederacy, from 1783 to the present time, when their independence was acknowledged and admitted, possessed the power to do, apart from any authority or opposing interference by the general government. In these documents, then, we find the legislation of Georgia and Alabama over the Indian tribes, within their chartered limits, sustained, as of right, and explicit avowal made, that the President will not interfere to prevent it. And what is the construction put upon this language. Not merely that the operation of the State laws is not to be opposed, because the guaranties contained in treaties with the Indians do not require it; not that, if they did require it, the existing laws are insufficient, for that purpose but 'because,' as stated in the report of the Senate by the committee on Indian affairs of that body,' in the opinion of the executive, constitutional objections exist, which it is not in the power of Congress to remove by any law which they could enact.' If this be the right interpretation of the views entertained by the executive, the doctrine is advanced, that treaties made with all the forms and solemnities known to the constitution, ratified by the President, with the consent of his constitutional advisors, and thus made, so far as the executive branch of the government can make them, the supreme law of the land, and declared so to be by the constitution, are not to be regarded and enforced if, in the opinion of the President, such treaties contain provisions inconsistent with what he considers the legitimate rights of the states; or, expressed in other words, if the executive deems a law of Congress, or a treaty duly ratified, to be an encroachment upon state rights, or for any other reason an excess of delegated power, he is at liberty to refuse his aid in causing them to be 'faithfully executed.' Is this a sound interpretation of the duties which the constitution has devolved upon the President? Is he made the judge of the extent of the powers of Congress, or the treaty-making power, after that power has been exercised in the manner prescribed by the constitution? Has he been constituted, in such cases, a judge to determine whether treaties are constitutionally binding whether laws which have been exacted are void, for want of power to enact them? If so, there seems to be no necessity for the clause in the constitution, which provides, that the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' If so, there is no division of the department of this government into executive and judicial; the latter, for all practical purposes, is annihilated, and the provision, that a bill which has been returned by the President with objections, reconsidered, and then approved by two thirds of both houses of Congress, shall become 'a law', is a dead letter. The President, if he can lawfully refuse to execute a law, or enforce the provisions of a treaty, because he has constitutional objections or scruples, constitutes himself the executive and judicial departments of this government. Such, in my judgment, is not this prerogative; and I believe it is the first time in the history of this nation, since the adoption of the constitution, that opinions like these have been advanced. Sure I am, that they were not the opinions of amy of his predecessors, or those wise men who framed the constitution, or of the people of this country; and I have deemed it indispensable to advert to them, lest it might be thought, from silence, that they met with universal approbation. The executive has no constitutional right to say he will not execute a law, because he considers it void for want of authority to enact it. No such discretion has been confided to him; I trust it will never will be; and if his scruples are such as to deter him from enforcing it, let him resign the trust confided to him. This is the only course he can adopt, under such circumstances.- The legislative and judicial departments are powerless, and the government is a rope of sand, if such opinions are entertained and acted on. Every law may depend for its execution upon the will of the executive; and, in these days of strict construction, it may be feared that few legislative enactments will pass unhurt through this ordeal of presidential discretion.

Having thus, very briefly, adverted to the opinions entertained and avowed by the executive in regard to 'pretensions' of the Indian tribes, on the supposition that the construction of the treaties made with them, and the laws enacted to regulate the intercourse with them, is correct, I proceed to consider the great questions involved in this discussion.

The report denies to the Indian tribes any title whatever to the lands which they occupy within the chartered limits of any state; and asserts a right in the states, in which they are located, to extend their legislative enactments over the Indians, and consequently, a power to annihilate their political existence, as communities to be governed by their own laws, usages, and customs. Nor does the executive, in his message, acknowledge any title to the lands, as subsisting in the tribes.

In the letter from the War Department, before referred to, the secretary says,' an interference to the extent of affording you protection, and the occupancy of your soil, is what is demanded of the justice of this country, and will not be withheld;' though he adds what would seem to make this interference of little, if any use; looking very much like 'keeping the word of promise to the ear, and breaking it to the hope.' It is in these words: 'yet, in doing this, the right of permitting to you the enjoyment of a separate government within the limits of a state, and of denying the exercise of sovereignty to that state within her own limits, cannot be admitted. It is not within the range of power granted by the states to the general government and therefore not within its competency to be exercised. No remedy can be perceived but a removal beyond the Mississippi, where alone can be assured to you protection and peace.- To continue where you are, within the territorial limits of an independent state, can promise you nothing but interruption and disquietude.'- And the President, in his message, speaking in reference to the same tribe, says, though their 'emigration should be voluntary, yet it seems visionary to suppose that claims can be allowed on tracts of country on which they have never dwelt nor made improvements, merely because they have seen them from the mountain, or passed them in the chase.' It will be observed, that this language is spoken of the Cherokees, who have dwelt on and improved their lands, and seems, at least, to imply that they have no title to the lands within their boundaries. But it is unnecessary to make further reference to the message. I shall content myself with referring to the report, and, so far as I am able to comprehend it, there is no acknowledgement of any title, in the Indian tribes, but the spirit of every part of it is utterly at war with any such acknowledgement.

The committee say,(p. 4) 'It is certain that possession, actual or construction, of the entire habitable portion of this continent, was taken by the nations of Europe, divided out, and held originally, by the right of discovery as between themselves, and by the rights of discovery and conquest as against the aboriginal inhabitants. The pretensions of the Indians to be the owners of any portion of the soil, were wholly disregarded by the crown of England.'

Here the opinion is advanced, that the crown, by discovery and conquest, obtained either the possession, or right of possession of the whole of the soil then and now occupied by Indian tribes, and admitted no right in these tribes to any portion of it. The title and the possession being thus in the crown, it permitted the Indians, in all of them, to be governed or otherwise disposed of by the colonial authorities, without any interference on its part, until within a short period before the Revolution. And in all the acts, first of the colonies, and afterwards of the states, the fundamental principle that the Indians had no right, by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either expressly, or by implication.

The principle was adopted (p.8) that the Indians had no permanent interest in their hunting grounds; their right to hold their reserved

lands can be supported on no other ground than the grant or permission of the sovereignty or state in which such lands lie. This was in the crown before the Revolution, and in the states after that event, succeeding, as they did, to the sovereignty over all the lands within the limits of their respective charters. The Indian boundaries were considered temporary.- The treaties made with them were but a mode of government, and a substitute for ordinary legislation, which were from time to time dispensed with, (p. 12). Territory and jurisdiction, considered in reference to a state or nation, are inseparable; the one is a necessary incident to the other; and as a state cannot exist, without territory, the limits of that territory are, at the same time, the limits of its jurisdiction. The policy of Georgia (p. 13) has always been to contract the Indian reservations, gradually, within such reasonable limits, that no part of the country should remain uncultivated. Her policy in this respect was a part of her rights; anything which tends to defeat its operation is a deprivation of right. It is understood that neither Georgia, nor any other state, will attempt to appropriate the lands within the Indian reservations without their consent.

Can it be doubted, after these quotations, that the report denies to the Indians the right both of sovereignty and soil It would seem not, and, supposing this to be its meaning, and as expressive of the opinions of the committee, which we are called upon to adopt or reject, I proceed to an examination of the nature and extent of the Indian title to the lands within their boundaries.

In my judgement, neither of the positions assumed by the committee in their report is tenable. I think it capable of demonstration, that the right of the Indian tribes to the lands which they occupy is paramount to, and exclusive of all others, whether nations, states, or individuals; it is a right to occupy, enjoy, possess, and use, according to their own discretion, indefinitely and forever; and, for all practical purposes, is absolute. The only restriction is that of alienation at pleasure. This power of alienation is not, and cannot be claimed by these tribes; for the right of discovery, in the first instance; and the voluntary compact of the tribes afterwards; gave to the government of the United States the ultimate title, charged with the Indian right of possession or occupancy, and the exclusive power of acquiring that right. In other words, the Indians have sole right of occupancy. To that they have a just and legal right, and it includes the use, in such manner as they please, and is indefinite in duration, and of which they cannot be dispossessed, except by cession or conquest. The government have the exclusive right of purchase, and the ultimate right, whenever the possession becomes vacant by voluntary dereliction, or by the extinction of the tribes.

I think also, it can be shown that these tribes are separate; distinct communities, wholly independent of the states; not subject to their legislation, and possessing the right of self-government-the right to be governed by their own laws, customs, and usages; and under no restraints, except such as they have imposed upon themselves in their treaties with the United States

The foundation of their title is occupancy. They have been in possession, claiming the right to the soil; from our first knowledge of them. They were found there, when this country was discovered. They, and they only, have possessed it; and this occupancy has been from time immemorial. Writers on jurisprudence agree in the proposition, 'that the original right to all kinds of property arose from pre-occupancy, and that, in a state of nature, everyone might possess himself of and retain any vacant subject. The first occupant had a right to grant, cede, or transfer, the subject he had possessed himself of, to such persons, and upon such terms, is he thought proper, and if, before such grant, cession or transfer, the occupant died, his property descended to his children. The right of transmitting property always resided in the owner, and civil institutions only prescribed the mode of carrying that right into effect. In that period of society, when the countries were formed, and their boundaries fixed, we find that different districts were appropriated to the native owners, the first occupants, or, in case of vacant or derelict lands, to the first discoverers.'

What rights over the lands inhabited and possessed by the Indian tribes did the government making the first discovery of them acquire? Were they such as to annihilate the previous existing title of the aborigines to them Not at all. The discovery conferred the right of making settlements, of forming establishments, whenever the prior right of occupancy was lawfully extinguished; connected with the right of pre-emption, and the ultimate right in fee, whenever the Indian tribes would become extinct. The power to exclude other nations from occupying, or making purchases of the natives, was an incident to the discovery and was afterwards conferred by the Indians in their treaties.

It will be obvious that this view of the subject is correct, by referring to the uniform course adopted by the crown of England, by the colonies by the states after the Revolution, and by the states and general government since that period, up to the present time; confirmed by repeated adjudications of the highest judicial tribunal of this nation.

The first attempt to dispose of a whole continent without reference to the rights of the aboriginal inhabitants, was made in 1493 the year after the discovery of America, by Pope Alexander VI who gave it to the crown of Spain, on the assumed principle that infidels were unjust possessors of their lands on which their Creator had placed them. This grant was accepted, contrary to the advice of the civilians ' crown lawyers of Spain; ' one of the bishops in a treatise dedicated to Charles the V holds this strong language: 'The natives of America, having their own lawful kings and princes and a right to make laws of the good government of their respective dominions could not be expelled out of them, or deprived of what they possess, without doing violence to the laws of God, as well as the laws of the nations.'

The English princes, though they did not acquiesce in the right of the pope to make these grants, made out their commissions on the same principle, the distinction between infidel and Christian nations. It is true, that grants were made, charters passed under the great seal, and the British crown asserted the right of conveying the soil, though in possession of the natives; or, as it has bee sometimes said, of appropriating the lands occupied by the Indians. But it was only the ultimate right of property, the reversionary interest, which they claimed, and which they professed to have the power to convey. It was the right to extinguish the Indian title of occupancy, and nothing more, which they either possessed or claimed to possess. The Indians were always 'admitted by the crown to be the rightful occupants of the soil, with a legal, as well as just claim to retain possession of it, and to use it according to their own discretion.' and of which they could not be dispossessed by legislation, but by conquest or cession only.

I have said, that the Indian title, thus explained, was always and uniformly admitted by the crown, and colonies, the states, the old confederation, and the government of the United States since the adoption of the Constitution; and that it has received the sanction of the highest judicial tribunal of this country. I will ask the attention of the committee to the proof in support of this position.

In 1750, the Superintendent of Indian Affairs informed the Indians assembled at Mobile, in the name of the king, that no encroachments should be permitted on their lands; and that all treaties made with them would be faithfully kept on the part of the crown.

In September, 1753, by order of the King, instructions were sent to the governor of the province of New York, to appoint commissioners, who in conjunction with commissioners from other neighboring governments in alliance with them, should make a treaty, in his majesty's name, with the Six Nations. In these instructions, it is stated, 'that nothing may be wanting to convince the Indians of the sincerity of our intentions, you will do well to examine into the complaints they have made of being defrauded of their lands; to take all proper and legal methods to redress their complaints, and to gratify them by reasonably purchases, or in such other matters as you shall find most proper and agreeable to them for such lands as have been unwarrantably taken from them, and for such other as they may have a desire to dispose of.' In June, 1854 (sic), pursuant to these instructions, commissioners met at Albany, from the provinces of New York, New Hampshire, Massachusetts, Rhode Island, Connecticut, Maryland, Pennsylvania, and Virginia. Hendrick, in behalf of the Six Nations, told the commissioners, 'that the governors of Virginia and Canada were both quarrelling about lands which belonged to them.' The commissioners replied to them, and said, 'We gladly understand that you gave no countenance to the French who went to the Ohio, and have entered on your lands. You did put this land under the King our father, and he is now taking care to preserve it for you. For this end, among others, he has directed us to meet you here; for, although the land is under the King's government, yet the property or power of selling it to any of his majesty's subjects, having authority from him, we always considered as vested in you. We ever did and still do acknowledge it to belong to you, although within your father, the King of Great Britain's dominion, and under his protection!' A treaty of alliance and defense was, at that time, made with the Six Nations.

In allusion to this treaty, the Governor of Pennsylvania, in his address to the assembly of that state, says, 'From the proceedings at the late treaty of Albany, you will clearly perceive, that the lands on the river Ohio do yet belong to the Indians of the Six Nations, and have long since been put under the protection of the crown of England.'

In April, 1755, General Braddock sent instructions to the Superintendent of Indian Affairs of the King, in which, after mentioning that the Five Nations, 1701, had put their lands also under the same protection, to be protected and defended by the said king, his heirs and successors, to the use of the tribes and their successors for ever, he adds, 'You are in my name to assure the said nations, that I am come by his majesty's order to build such forts as shall protect and secure the said lands to them, their heirs and successors for ever.'

In the memorial delivered by the British minister to the French negotiator in 1755 (June) he says, 'Whatever pretext might be alleged by France, in considering these countries as the appurtenances of Canada, it is a certain truth, that they have belonged, and, as they have not been given up or made over to the English, belong still to the same Indian nations.' What the court of Great Britain maintains it what insists upon, is, that the Five Nations of the Iroquois are, by origin or by right of conquest, the lawful proprietors of the river Ohio, and the territory in question.'

In May, 1755, Sir William Johnston said to the Six Nations, 'Agreeably to the instructions I have received from the great king, your father, I will reinstate you in the possession of your lands.' And again, in February, 1756, 'The king will protect your country, and the lands which your fathers conquered, and are of right your territories, against all violence.'

In August, 1760, Lord Amherst assured the Six Nations, 'that their lands should remain their absolute property.'

In 1762, the commanding officer at Fort Pitt prohibited, by proclamation, any of the subjects of the King from settling west of the Allegheny mountains, that country having, by the Treaty at Easton, in 1758, been allowed to the Indians for their hunting grounds.

In 1763, a royal proclamation was issued, restraining the Governor of Virginia from making grants west of the Allegheny Mountains, because that country, not having been ceded, to or purchased by the crown, was reserved to the tribes of Indians who lived under the protection of the king, as their hunting ground.

I will not detain the committee by quoting from the proceedings at what was called the Congress of Fort Stanwix in 1768; from the opinions of the learned in the profession in England, of Dr. Franklin, Patrick Henry, Judge Pendleton, and Mr. Mercer, on the operation and effect of the grant from the Six Nations to William Trent, and of the ratification of that grant by the crown, by the Treaty at Fort Stanwix. It may be remarked, however, that all these distinguished men agreed in opinion, that the title of the Indians was one which could not be disturbed without their consent; and some of them supposed their power to convey was absolute, both as to the manner and the grantees, as an incident to their right of property in the soil.

The treaties made between Great Britain and the Chickasaw and Choctaw Indians, at Mobile, in 1765, and the Upper and Lower Creeks, at Pensacola, in May and November, 1765, all recognize the same right in these tribes, which has theretofore been stated: boundaries are established, and all the lands not embraced within the limits which include what the Indians reserve to themselves, and in which they have full right and property, are granted and confirmed to the crown.

It may safely be affirmed, that in no instance did the crown of England ever claim in practice, a right by discover, but only by purchase, to interfere with the Indian title of occupancy, as before explained. It admitted in the fullest extent, the necessity of extinguishing it, before the Indians could be deprived of their lands; and, in all their acts, whether in the form of instructions, proclamations, laws, or treaties, acknowledged the title of the aborigines, and claimed only the exclusive right of purchase, and the ultimate reversionary right in fee.

Such being the relative situation of the crown and the Indian tribes, as to the lands occupied by them, let me now call the attention of the committee to the acts and declarations of the colonies and states, particularly Georgia, and it will be seen that the same principles were adopted, the same rights conceded to the Indians, and the same interest asserted to exist in the colonies and states.

In June, 1779, the Assembly of Virginia resolved, that the commonwealth had the exclusive right of pre-emption from the Indians within the limits of its own chartered territory, and that such exclusive right of pre-emption would and ought to be maintained by the commonwealth to the utmost of its power. This is all the right which they asserted and claimed.

In 1733, Oglethorpe, the founder of Georgia, made a treaty with the Lower Creeks in which he obtained cessions of lands from them, and in which it is declared that though the lands belong to them, (the Indians) they will permit the English to use and possess a part of them, and that the rest should remain to the Creeks forever.

In 1768, he made another treaty with the assembled estates of all the Lower Creek Nations, in which substantially the same provisions were inserted.

In 1783, another treaty was made with the Catawba, Cherokee, Choctaw, Chickasaw, and Creek nations, in which cessions of land were made; and, in May, 1773, another treaty was made with the Cherokee and Creek nations, by which boundaries were established, and cessions made by the Indians.

(To be continued.)