Of the Hon. Isaac C. Bates, Representative from Massachusetts, delivered in the House of Representatives, on the bill for the removal of the Indians, May 19, 1833.
Now, Sir, let it be recollected, that, during this period, all the states, by their agents, acting, under their authority ' with their sanction and approbation, adopted these measures. They may, therefore, be considered a fair and decisive indication of what was then thought to be our Indian relations. In no respect were the Indians treated as citizens or subjects, but as sovereign tribes or nations, with the power of making peace or war at pleasure, much less as tenants at the will of the States-one, many, or all of them.
When the Articles of Confederation were adopted, in 177_, or finally by all the States, in 1781, 'the sole and exclusive right and power of regulating the trade and managing all the affairs of the Indians, not members of any of the States' was given to the United States. In connection with the clause in a provision, 'that the legislative right of any State within its own limits be not infringed or violated.' The argument is, that the Cherokees were the citizens of Georgia, and subject to her jurisdiction. From this article it is clear there were Indians with whom the United States had trade to regulate, and affairs to manage, who were not members of any State. If not the Cherokees, who were they? The land from the Atlantic to the Mississippi, within the limits of the United States, was within the geographical boundary of some one of the States. According to the position of Georgia, therefore, there were no such tribes. Reliance is placed upon the proviso, as controlling the express grant; and if no effect could be given to the proviso, consistent with grant, there might be something to the suggestion. But while the 'power of entering into treaties and alliances' is given in the same section there is a proviso, 'that the legislative power of the States shall not be restrained from imposing duties and prohibiting the exportation and importation of goods.' These articles were permanent; and it was not to be foreseen what these tribes night become. With the same view the proviso, in relation to them might have been adopted. Or it might have been (the term Indians being used, and not Indian nations) in order to restrain Congress from interfering with such of them as were dispersed among the inhabitants of the States. Or, again, it might have been to restrain Congress from controlling the laws of the States in relation to the people of these Indian nations, when within the acknowledged limits and jurisdiction of the States. Or, mainly, it might have been out of abundant caution, without any distinctly contemplated object. Effect enough can be given to sustain the proviso, without annulling the power granted. And this grant plainly proves that there were Indian nations or tribes, who were not members of any of the States; and if so the Cherokees do not belong to Georgia. What Congress understood by the article is clear, for, immediately after the confederation of 1781, it passed a resolve approving of the appointment of the commissioners by General Greene, to negotiate a treaty with the Cherokee Indians; and the whole course of its legislation, down to the adoption of the Constitution in 1788, shows the same thing.
In 1783, the Secretary of War was directed to notify the Indian nations, 'that the United States were disposed to enter into friendly treaties with the different tribes.' This was in May, after the peace. In September, Congress issued a proclamation, prohibiting settlements 'on lands inhabited and claimed by Indians, without the limits and jurisdiction of any particular State;' and prohibiting the purchase of such lands, without an express 'authority from the United States in Congress assembled.' What lands were these, without the limits, and without the jurisdiction, too, of any State? In October, Congress resolved that a convention should be holden of the different tribes, for the purpose of receiving them 'into the favor and protection of the United States,' and of establishing 'boundary lines of property to divide the settlements of the citizens from the Indian villages and hunting grounds.' In 1784, another resolve was passed, to expedite the holding of treaties; and in 1785, particularly with the Cherokees and Indians to the southward of them. This is the resolve under which the treaties of Hopewell were held.- The commissioners were appointed for the purpose of making peace; they went under the protection of an armed force; they went with presents. IT was a peace we sought, not the Indian nations. After the treaties of Hopewell were concluded with the different tribes, the Indian departments were recognized, and another resolve was passed in 1786, regulating Indian intercourse. No citizen was to reside among or trade with the Indians, without a license. And in 1786, upon application of Georgia herself, the Creeks were informed, that if they persisted in refusing to treat with the United States, an armed force would be called out to protect the frontiers.
I do not find a remonstrance, or an objection even, by any of the States, to the powers assumed and exercised by Congress in relation to the Indian nations, except as to the Treaty of Hopewell with the Cherokees; and that Congress enforced, notwithstanding, by a proclamation in September, 1788 deeming a treaty binding upon the United States, and upon Georgia as one of the United States.
In this condition of things, the Constitution was adopted; and instead of the clause in the Articles of Confederation, with the limitation and the proviso, a general, unlimited, unqualified power is given to Congress, 'to regulate commerce with the Indian tribes,' and as fully and unconditionally as with 'foreign nations,' or 'among the several States.'
This article in the Constitution established my position, that the Indians were not members of the States, nor subject to their jurisdiction; but were sovereign nations, with whom the United States had a commerce to regulate. If, as affirmed, they were members of the State of Georgia--citizens or subjects- then the grant of power was to regulate commerce among the several States and the members thereof; which is power never claimed nor admitted. Congress deals only with States; the states with their citizens or subjects. Congress, therefore, has the power, in express terms, to proscribe all the forms of intercourse between the United states and the Indian tribes, or to interdict it altogether, as the exigency may require, in the same sense, and to the same extent, as it has with foreign nations.
In 1790, the first Indian intercourse law, under the Constitution, was passed, forbidding all trade between the citizens of the United States and the Indians, except by persons duly licensed. The fifth section provides, that if any citizen of the United States go into any town belonging to a nation of Indians, and there commit a crime, he shall be punished as if said crime had been committed within the jurisdiction of a State. Is not this decisive, that the Cherokees are not citizens of Georgia? nor within the jurisdiction of Georgia.
The act of 1796 defines the boundary of the Indian tribes, and makes it penal for any citizen of the United States to pass it without a license.
Another act was passed in 1799, substantially of the same import.
These acts were temporary, and the provisions of them were embodied in the act of 1802, which was made permanent. It is now in full force, and has been, ever since its enactment.- The only provisions, in either this or the antecedent acts, objected to, were a part of the fifth section of the act of 1796, relating to the forfeiture of lands, and the sixth section, punishing with death the murderer of an Indian. These provisions were, among other things, the foundation of a remonstrance to Congress by Georgia. The objectionable feature of the fifth section was omitted, and the sixth section was retained, in the act of 1802. This act has been in force, and has been enforced by all the States, as a wise and constitutional law. Well, Sir, this reaffirms the Indian boundary as then established and defined by the Indian treaties. It provides that no person shall pass it not even the Governor of Georgia, much less his bailiffs, without authority from the United States. It forbids all settlements by the whites on the Indian lands, and invests the army with power to arrest and bring offenders to punishment. It made void all grants by Indian nations, or individuals, unless sanctioned by Congress; and it commissions the President to see it faithfully executed. It will be perceived at a glance, that if the Indians were the citizens of Georgia, or subject to her jurisdiction, the whole range of this act is unconstitutional. Congress can make no such internal regulations among the inhabitants of a State as it contemplates.
The act of Georgia itself, 'to extend her laws over the territory in the occupancy of the Cherokee Indians,' is the most decisive proof that they were not within her jurisdiction before. The general laws of the State were without limitation. Of their own force, as soon as passed, they pervaded and covered the whole extent and circumference of her jurisdiction. And yet a special act is now necessary to give them effect among the Cherokees! Why this? Because they were not within her jurisdiction before. They were honest laws, and knew that their commission and power ceased at the Indian boundary, beyond which they had no right to go, and beyond which no citizen of Georgia could go to execute them. If Congress has power, under the Constitution, to regulate commerce with foreign nations, to say by whom, and under what restrictions, it may be carried on; to interdict it altogether, even; it has the right as to the Indian tribes.- And having done it, Georgia is bound by it, unless she be above law, and so not subject to law.
She is bound also by treaties which the United States have made with the Cherokees. The POWER to make treaties is in these words:
'The President shall have power by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senate concur.'
The effect of treaties is declared in these words:
'All treaties, made, or which shall be made under the authority of the United States, shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.'
It has been intimated, to get rid of the effect of our Indian treaties, that they are not treaties. What then is a treaty? Hamilton says, 'Treaties are contracts with nations, which have the force of law, but derive it from the obligations of good faith'- 'Agreements between a sovereign and sovereign.'- another name for a bargain, but a bargain between those who are sovereign.
The treaties between the United States and the Cherokees were negotiated as treaties, and treaties between nations competent to make treaties. They were ratified as treaties. There were called treaties, not only by us, but by the French, Spanish, and English, before our time. They were admitted to be treaties by Georgia. But whether treaties or not, it is of no importance, because indisputably they are what was meant and intended by the term as used in the Constitution; they are the thing that was to have the power and force given to it in the Constitution; to control State laws and State Constitutions. How, then, can we say to the Indian nations, that what we called treaties, and ratified as treaties, were not in fact treaties?
I will call the attention of the House to the Treaty of Hopewell, in 1785.- This was a treaty in force when the Constitution was adopted. It was a treaty then 'made' and 'all treaties made, or which should be made,': 'c., were to be the supreme law of the land. These are the words of the Constitution. Georgia, by adopting the Constitution, agreed at least, to this treaty. Nor is there the slightest foundation for the suggestion that she did not intend to affirm this treaty.- Let it be recollected that this treaty was not only uniformly called a treaty, known as such, but of all other treaties, 'this was most likely to be distinctly in view; 1st, Because it was a subject of her remonstrance in 1786; 2d, because the boundary to which it related has been a matter of perpetual dispute between her and the United States; and a 3d. Because, when she adopted the Constitution, the proclamation of Congress was then before the people, requiring submission to this very treaty, and calling upon the army to enforce it against the citizens of Georgia. Of all subjects, therefore, which Georgia had openly and fully in view, this was the most prominent, made so by the important contemporaneous events which affected that State individually. But, independent of all this, it is enough that it was then deemed a treaty, and, as such, was made the supreme law of the land. Now, what is it?
1. It is negotiated by plenipotentiaries on both sides.
2. The United States give peace to the Cherokees, and receive them into favor and protection.
3. A mutual restoration of prisoners, 'c., is agreed upon.
4. The boundary between the Cherokees and the citizens of the United States (within 'the United States of America'- the technical corporate name of the confederation, excluding the idea that the hunting grounds lay in Georgia) is stated in these terms, 'the boundary allotted, 'c. is and shall be the following,' going on to state it.- Now, Sir, what form of words can add anything to the strength of the covenant or guaranty involved in the phrase 'is and shall be,' and that without limitation as to time? The guaranty in the Treaty of Holston is nothing more than this. It binds the United States, and Georgia with them, and will bind forever, unless the Cherokees choose to remit the obligation.
5. The citizens of the United States who had settled, or should attempt to settle, westward of the boundary established by that treaty, are outlawed, and left to the Indians to punish as they please. What, then, becomes of the right claimed by Georgia to take possession of this whole country, and annex to it the continuous counties of that State?
6. Congress 'shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such a manner as they shall think proper.' This article, which has been the subject of some criticism elsewhere, is in the very words of the power given to Congress upon this particular subject, in the Articles of Confederation, with this difference, that, instead of saying 'regulating trade and managing affairs with the Indians,' it makes a wrong collocation of the words, and says, 'regulating trade with the Indians and managing all their affairs,' the intent obviously being to make the Indians agree that Congress should have the power to regulate the trade of the United States, and manage the affairs of the States individually, or collectively, or both, with them. Congress had no power to go further. The treaties at Hopewell with the Choctaws ' Chickasaws are expressed in the same terms. They were probably written by Governor Blount, who attests them, and hence the similarity.
The object for which this power is given to the United States is set fourth in the same article, viz: 'For the benefit and comfort of the Indians, and for the prevention of injuries and oppressions on the part of the citizens.' By what authority then does Georgia, in the face of this treaty, abrogate all their laws, usages, and customs, subject them to her laws, and throw their country open to the inroads, injuries and oppressions of her own citizens? And what becomes of the guaranty of boundary, and of the protection the United States promised them?
7. Retaliation is not to be practiced on either side, 'except for a manifest violation of this treaty; and then it shall be preceded by a demand of justice; and, if refused, by a declaration of hostilities.' This, sir, looks very much like sovereignty.
I have said that this treaty was affirmed, by the adoption of the Constitution, as a 'treaty made,' and is still in force. To remove all doubt upon this subject, I have only to remark that, by the Treaty of Philadelphia, in 1795, at Tellico in 1799, and again in 1804, and at the Cherokee agency in 1817, by General Jackson, this Treaty of Hopewell is recognized as a treaty in force and perpetuated. But this is not all. In August, 1790, after the Constitution was adopted, Washington addressed the following note to the Senate.
'I shall conceive myself bound to execute the powers entrusted to my by the Constitution, to carry into effect the faithful execution the Treaty of Hopewell, unless it shall be thought proper to attempt to arrange a new boundary with the Cherokees, embracing the settlements and compensating the Cherokees for the cessions they shall make on the occasion.' The white people had encroached upon the Cherokees contrary to the Treaty of Hopewell, and the question was whether to expel them by force, or purchase the land they occupied, and so by agreement changing the boundary ____d by the Treaty of Hopewell. He goes on- 'Is it the judgement of the Senate that 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.' The Senate answer- 'That they do advise and consent that the President cause the treaty of Hopewell to be carried into effect according to its terms; or enter into arrangements for a further cession of territory from the Cherokees, at his discretion.'
Hence the House see that this treaty was not only confirmed by the Constitution, but during the first Congress under the Constitution it was recognized as a treaty in force; and without any change, except as to the boundary, which has varied with the subsequent cessions of territory, it still remains a treaty in force. It had no limitation as to time; and if it be not now in force, let the advocates of this bill tell us when, where, and how it was abrogated.
The Treaty of Holston with the Cherokee Nation, of 1791, was accordingly negotiated, by which a further cession of land was obtained, and thereby the necessity of removing the intruders obviated. A new boundary was established, or course, 'and in order to preclude forever all disputes relative to said boundary, the same shall be ascertained, says the treaty, and marked plainly.' And by the seventh article, 'The United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded.' Here they (sic) guaranty in the Treaty of Hopewell is reiterated in a more distinct and solemn form; for it will be found that Washington, when he asked the advice of the Senate, to which I have alluded, and in prospect of this identical Treaty of Holston, put this question, 'Shall the United States stipulate solemnity to the guaranty the new boundary which may be arranged?' And the Senate answer, 'That in case a new boundary, other than that in the Treaty of Hopewell be made, the Senate do advise and consent solemnly to guaranty the same.' Sir, treaties cannot be annulled at pleasure. There may not be good faith enough in the parties to keep them, but their obligations live. What answer can you give the Cherokee Nation when now called upon to redeem this pledge? to make good your guaranty of this boundary, and to prevent the partition of their nation, and the annexation of its parts to Georgia? The President has told us, 'they must submit.' This bill tell us so, and tells the world so. Submit, or remove, is the language. This Treaty of Holston, the ninth article, further stipulated, 'that no citizens of the United States should go into the Cherokee country without a passport,' the barriers of which are all prostrate, and any man may now go at pleasure into it, or over it, unless this government interpose.
Another treaty was concluded at Philadelphia in 1794, and another at Tellico in 1798, by which the Cherokees cede more land, and by which the United States, 'in consideration of the cession made, say to the Cherokee Nation, that they will continue the guaranty of the remainder of their country forever, as made and contained in former treaties'- Hopewell; Holston, ' Philadelphia. This is found in the sixth article of the Treaty of Tellico.- In the face of these admissions on our part, who will venture to say that the Cherokees are the citizens, the tenants at will, of Georgia? or subject to the jurisdiction of Georgia? Who does not see that they were sovereign? the sole, the admitted proprietors of the 'country we guarantied to them forever'--we, the United States of America!
The same stipulations as to boundary, settlement, trade, and generally as to intercourse, are contained in these treaties, as are comprised in the law of 1802, and show conclusively, not only that the Cherokees are not subject to the jurisdiction of Georgia, but they interpose the most insurmountable obstacles to an assumption of it by Georgia. And I feel justified in affirming that, unless the laws of the United States, and treaties under which we hold millions of acres of land-laws and treaties never questioned until it became necessary to deny their authority to sustain this claim-are a dead letter, the sovereignty of the Cherokees is recognized, and the protection of them guarantied.
(To be continued.)