Cherokee Phoenix


Published October, 7, 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 13, 1830.


On the 11th of August, 1790, General Washington sent a message to the Senate, in which he asks the advice of the Senate, whether 'overtures shall be made to the Cherokees to arrange a new boundary, so as to embrace the settlements made by the white people since the Treaty of Hopewell;' and whether the United States should 'stipulate solemnly to guaranty the new boundary which may be arranged?' The Senate gave their advice by answering both these questions in the affirmative. It is to be observed also, that in this message General Washington explicitly states, that he shall consider himself bound to exert the powers intrusted to him by the Constitution, in order to carry into faithful execution under to carry into faithful execution the Treaty of Hopewell.

Let me now turn the attention of the committee to the opinions entertained by the distinguished men who negotiated the Treaty of Ghent, speaking in the name of the government, and whose attention was particularly called to the subject by the British negotiators; and let it be remembered, that some of them, at least, were advocated of the rights of the states, and of what it has been called, in modern times, a strict construction of the powers of the general government.-- These opinions unequivocally support the Indians tribes in their right to be governed by their own laws and usages. In their note to the British Commissioners, dated September 9th, 1814, they use the following language: 'A celebrated writer on the laws of nations, to whose authority British jurists have taken particular attention in appealing, after stating in the most explicit manner the legitimacy of colonial settlements in America, to the exclusion of all uncivilized Indians, has taken occasion to praise the first settlers of New England, and the founder of Pennsylvania, in having purchased of the Indians the lands they resolved to cultivate, notwithstanding their being furnished with a charter from their sovereign. It is this example which the United States, since they became, by their independence, the sovereigns of the territory, have adopted and organized into a political system. Under that system, the Indians residing within the United States are so far independent, that they live under their own customs, and not under the laws of the United States; that their rights to the lands where they inherit or hunt, are secured to them by boundaries defined in amicable treaties between the United States and themselves; and that whenever these boundaries are varied, it is also by amicable and voluntary treaties. They are so far dependent as not to have the right to dispose of their lands to any private persons, nor to any power other than the United States, and to be under their protection alone, and not that of any other power. Whether called subjects, or by whatever name designated, such is the relation between them and the United States. These principles have been uniformly recognized by themselves, in all the treaties between them and the United States.'

I now invite the attention of the committee to the Cherokee treaty of July 8th 1817, which was negotiated by the present chief magistrate of this nation, as one of the commissioners. And it is worthy of particular notice, that it was under the faith of this treaty, and one of the objects for which it was made, to enable the Cherokees to establish a government of their own, and adopt laws more in unison with republican principles that their former usages, and which laws and government the state of Georgia claims a right to abolish.

The preamble recites, that the Upper Cherokee Towns are desirous of contracting their society within narrow limits, that they may begin the establishment of fixed laws and a regular government; and for this purpose requests a divisional line to be established between them and the Lower Towns; and, to carry into effect the before recited promises with good faith, the Cherokees make a cession of part of their lands to the United States. It is very obvious, that the only object of this treaty and the cession made under it, was to enable the Cherokees who remained east of the Mississippi to institute a government and enact laws suited to their then condition. This object was well understood by the commissioners who negotiated, and by the President and Senate who ratified this treaty. As an inducement to effect this object, to them so desirable, they made large grants of their territory. They proceeded to establish their government and laws, to 'engage in the pursuits of agriculture and civilized life.' upon the faith of this treaty; and, eleven years afterwards, they are informed by the President, who negotiated the treaty, and speaking in behalf of the government which ratified it, that they cannot be protected in the enjoyment of that government and those laws, but that the state of Georgia may lawfully abrogate both. Was this the view taken of their rights by the commissioners, and by the President and Senate, in 1817? Was it not conceded by them all, that the Cherokees had the right to institute a form of government and make laws for themselves, and that they should not be molested, but protected in the exercise of that right?

In July 1787, Congress passed an ordinance for the government of the territory northwest of the river Ohio, the fourth article of which provides, that the 'utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent: and in their

property rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made for preventing wrongs being done to them, and for preserving peace and friendship with them?'

In the cession by Georgia, in 1802, it is provided, that when the territory ceded by her shall be formed into a state, it shall be admitted as such into the Union, on the conditions and with the restrictions contained in the foregoing ordinance, except the article which forbids slavery.

In 1817, Congress authorized the inhabitants of the western part of the territory of Mississippi to form a state government, preparatory to her admission into the Union, with a proviso, that the constitution and government by them formed should not be repugnant to the before mentioned ordinance, and the provisions of the deed of cession by Georgia.

In the same year, Mississippi, having formed a constitution and state government, declared by Congress to be in conformity to the principles of the foregoing ordinance, was admitted into the Union.

In 1819, Alabama was admitted on the same principles.

From these facts, two very obvious inferences are to be drawn. The one is, that, in 1802, Georgia considered the ordinance of 1787, which secured the property, the rights, and the liberty of the Indians, as not only just and proper, but as one which the Continental Congress might lawfully make. The other is, that the acts authorizing them to form a government, and admitting them into the Union, from enacting laws, which shall infringe upon the rights of the Indians.

In the Senate of the United States, in 1827, in the discussion of a bill making an appropriation for the repair of a post-road in the state of Mississippi, in answer to an objection, that the state ought to construct and repair its own roads, Mr. King of Alabama said, 'The road runs through the Indian country, over which the state of Mississippi had no control.

Mr. Johnson of Kentucky said, this 'was a road opened by the United States, according to a treaty stipulation with the United States.'

Mr. Ellis of Kentucky said, this 'was a road opened by the United States, according to a treaty stipulation with the United States.'

Mr. Ellis of Mississippi said, 'the road did not pass through one seventh part of that State, and it was impossible for the state government of Mississippi to have any authority over these lands, until the title to them was extinguished.'

Mr. Eaton of Tennessee, the present Secretary of War, said a treaty had been entered into between the United States and the Choctaw Indians. The question of state rights had not then arisen, and the government of this country was in the hands of Mr. Jefferson. Under such an administration, no attempt would have been made to enter into a treaty with a distinct sovereignty, that went to invade the principles of the Constitution. 'Ever since this government had existed,' Mr. Eaton said, 'they had proceeded on the principle that the Indians are a distinct sovereignty; it was, an anomaly that one sovereignty should exist within the orbit of another; but they always had proceeded on this principle, and if they had any right to interfere with them, why did they proceed with them in the character of sovereignties?' Mr. Eaton contended that, 'in the provisions of this treaty, there was no cession of property on the part of these Indians; there was not even a cession of sovereignty. They, in their sovereign capacity as Indians, yielded their consent to the United States, could not give the state of Mississippi any sovereignty over it.

Mr. Berrien of Georgia, now Attorney-General of the United States, said, 'the moderate reflection he had been able to bestow upon this subject had reconciled his mind to the admission of the principle, that the effect of this treaty was certainly of limited extent. This treaty was concluded before the admission of Mississippi into the Union, and the parties to that treaty being considered as distinct sovereignties, might have imposed on the United States certain obligations; from which obligations they could not disengage themselves by any new compacts, entered into with the people of Mississippi, on their admission into the Union.'

Mr. White, at present a senator from Tennessee, and chairman of the committee on Indian affairs, in a written opinion given in 1824, says 'these people (the Cherokees) are now to be viewed as a nation possessing all powers of other independent nation, which are not expressly, or by necessary implication, surrendered up by this treaty, (the Treaty of Holston.) I have believed, and still do, that under the treaties the Cherokees must by considered a nation possessing like powers with other nations, except so far as they have surrendered them to the United States.'

Are these treaties thus explained, binding? If they recognize and declare the Indian tribes, with which they are made, so far independent as to possess the right of governing themselves, by their own municipal regulation, as not to be subject to the legislation of the states, and have the sole right of occupancy forever to the lands described in the boundaries specified, are the treaties, the supreme law of the land' Had the government of the United States the power to enter and to ratify them?

It would seem to be somewhat novel, that a necessity is supposed to exist to prove that the treaties made with the Indian tribes are valid; but this necessity is imposed, from the repeated declarations, made hypothetically indeed, upon the supposition that they conflict with the supposed and asserted rights of state sovereignty; that they were not lawfully entered into; and, therefore, that they are void. Let me ask the attention of the committee to the proofs that they are compacts, which, if not fulfilled by us, will subject us to imputation of violating our national faith; that they were, what they profess to be, made with full authority, and are now the supreme law.

These treaties have received the sanction of every department of the government, and by each been considered as binding on the contracting parties.

By the Executive. This is necessarily implied in making and ratifying them. For it is not to be presumed that the President would make, and that the Senate would advise and consent to, a treaty which they did not believe was binding on either of the parties to it. But we are not left to mere deductions or inferences from the exercise of the treaty-making power. The records of our government furnish us with ample evidence of the opinions entertained of their validity by all the illustrious men, who have successfully held the high office of President of the United States.

General Washington, in a communication to the Senate, in 1790, says, 'The treaties which have been entered into with the other tribes in that quarter, must be faithfully performed on our parts: I shall conceive myself bound to exert the powers intrusted to me by the Constitution, in order to carry into faithful execution the treaty of Hopewell. The letters of the chiefs to the Creeks are also laid before you, to evince that the requisite steps have been taken to produce a full compliance with the treaty made with that nation on the 7th of August, 1790. The Senate advised and consented that the President should cause the treaty concluded at Hopewell to be carried into execution according to the terms thereof. It is of some importance that chiefs should be satisfied of the entire good faith and liberality of the United States.'

Similar opinions were expressed by all the persons holding the office of President. I will detain the committee by referring to those of Mr. Jefferson only.

'The government is determined to exert all its energy for the patronage and protection of the rights of the Indians. Until they cede their lands by treaty, or other transaction equivalent to a treaty, no act of a state can give a right to such lands.'

The validity of these treaties has been fully recognized by the legislative department of the government. It has passed, from time to time, laws regulating the intercourse with them, laws making appropriations of large sums of money to carry these treaties into effect; and the bill now under consideration proceeds upon the admitted principle, that the Indian tribes have, by treaties, rights to lands which are to be extinguished, improvements which are to be purchased and paid for; and appropriates money for these objects.

The judicial department, in the cases before referred to, had made a full recognition of the validity of these treaties. It speaks of them, and which, like all other similar compacts with independent powers, are to be faithfully observed.

I have, for another purpose, adverted to the opinions advanced by distinguished senators and representatives in Congress, from the states with whose chartered limits the Indians reside, and sustaining the doctrine that these treaties are the supreme law of the land. I solicit the committee to examine them in connection with the topic of argument which I am now discussing.

As these treaties were made under the authority of the United States, they are, of course, valid. The committee will notice the marked distinction, which is made in the Constitution between treaties and laws. Treaties made, or which shall be made, under the authority of the United States, and laws which shall be made in pursuance of the Constitution, shall be the supreme law of the land. To make a treaty binding, it is necessary that it should be made by the authority of the United States, and this is all which is necessary. This authority is delegated to the President and Senate, and when exercised by them, the states have agreed that it is duly made. Whereas, as to a law, it must be made in pursuance of the Constitution: and of this, the judicial department is constituted the judge. Now, these treaties have been made by the President, and ratified by two thirds of the Senate.--They have therefore, been made under the authority of the United States; and thus the states, by becoming parties to the Constitution, have declared them to be the supreme law of the land. Is it in the power of any state to declare, that in making these treaties, the limits prescribed by the Constitution were passed? that there was an exercise of power not delegated?

It is, in most cases, a safe rule by which to ascertain the correctness of an assumed principle, by following it out in its consequences. What would they be, in the case we are now considering, if these treaties are invalid? If they are void as to the United States, or as to any of the states, they are so as to the Indians. If they cannot be carried into effect, in good faith, because they infringe upon the rights of the states, they are inoperative for all purposes. The Indian tribes may say with great propriety to this government, If you have not the power to fulfill the stipulations tained (sic) in the treaties made with us, we are under no obligations on our part, to comply with them. If you exceed your powers, the treaties are at an end. And what could then be the result? Why, every cession of land made by virtue of them is a avoid grant. The boundaries which now circumscribe them are no longer fixed and permanent. Everything conceded by them in these treaties is set afloat. Are the states more especially benefited by them prepared for this result? Are they willing to acknowledge the principle, that no permanent rights were acquired for them by the ratification of these treaties?

If the Indian tribes possess the rights of soil and sovereignty to the extent, to which I have attempted to show they do possess them; if the treaties and laws entered into and enacted by the United States in relation to these tribes and valid-the power to pass this law does not exist, and its inexpediency is obvious. It takes away from those tribes, or impairs, the rights which belong to them. It substitutes a legislative enactment, requiring only a majority of both houses of Congress for a treaty, which requires the assent of two-thirds of the Senate.

If my physical strength were competent to the task, I would submit to the committee some considerations evincing the impolicy of the passage of this bill, growing out of the enormous expense which will attend its execution, and the utter annihilation which it will cause of the tribes who may remove to their contemplated residence west of the Mississippi. But I have already exhausted my strength in the discussion of the other interesting questions connected with the bill. I shall leave these topics to my friends who may follow me in this debate.

I would not, if I had the power, excite any improper sympathy in favor of these remnants of a once powerful race. I will not ask the committee to consider the manner, in which the white man was received by them when he first set his foot upon the shores of the western world; to the cessions of lands which, from time to time, they have made to the colonies and to this nation; to their present condition as improved in civilization, in morals, and religion; to their attachment to their present homes, the lands which they occupy, the graves of their fathers. No, sir; our obligations to sustain and protect them where they now are, are derived from sources, which need not the aid and sympathy to give them efficacy.

My friend from New York (Mr. Storrs) pointed out the view which would hereafter be taken of our decision on this bill, should it become a law. He took us from this hall, and arraigned us before the tribunal of our own countrymen, who would pronounce the sentence of condemnation; before the tribunal of assembled nations, who would pass a like sentence; before the tribunal of posterity, where would be opened the volume of history, in which would be found written in letters of fire-This republic violated its solemn treaty obligations with the Indian tribes, because it had the power, and was actuated by motives of interest, to do it. Sir, our future historian will not have the power to recording angel, as he writes this sentence, and drops upon it a tear, to blot it out. It will remain there as long as time endures. It is the ulcer of infamy; no balsam can heal it. It is the wreck of a ruined reputation: no artist can rebuild it. I might pursue the train of thought suggested by my friend from New York. I might assemble this nation before the most august tribunal ever to be erected- the tribunal of the last day. Divine inspiration hath written for our admonition, and I pray that it may not be repeated in the retributions of the final judgement, Cursed by he that possesseth himself of the field of the fatherless, and of him that had no helper, and the congregated universe pronounce the sentence just.