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
At this stage in the progress of my remarks, allow me to advert to the origin of the claim on the part of Georgia, with a view to a consideration of the settlement of it in 1802.
I have already remarked, that, at the commencement of the Revolution, the Indian boundary in the different States was the boundary of their ordinary jurisdiction, and included the lands which had been purchased of the Indians, as the aboriginal proprietors of them. In the progress of the war, a question arose as to the wild lands west of the boundary, and east of the Mississippi. Some of the States, having no particular title to these lands, being severed from them by other interjacent States, had, nevertheless, a deep interest in this question. An extract from the Journal of Congress, in 1783 will show how this matter was viewed by one side, at least at that time. It is by way of recital, 'Whereas the territory (of the United States) comprehends a large extent of country lying without the lines, limits, or acknowledged boundaries of any of the United States, over which, or any part of which, no State can, or ought to exercise any sovereign, legislative, or jurisdictional faculty, the same having been acquired under the confederation, and by the joint and united efforts of all: and whereas several of the States acceded to the confederation under the idea that a country unsettled at the commencement of this war, claimed by the British crown, it wrested from the common enemy, by the blood and treasure of the thirteen States, should be considered as a common property,' therefore, Resolved, 'c. Nothing was done by Congress upon this proposition. The other States, however, ceded their right to these lands, under certain limitations and reservations not material to be stated, to become a common fund for the benefit of the United States.* Georgia held on, and claimed as her own the immense and valuable tract of land lying between the Atlantic and the Mississippi, a part of which now constitutes the States of Alabama and Mississippi. This was gained by the War of the Revolution, the expense of which was apportioned among the States according to 'the white, black, and mulatto population,' excluding Indians: and during the confederation, according to the 'value of the land in each State granted or surveyed for any person,' excluding the wild lands.- While Virginia paid eight hundred thousand dollars, and Massachusetts eight hundred and twenty thousand, Georgia paid sixty thousand only.
Immediately, after the preliminaries of peace, Georgia undertook to fortify her claim, and passed an act declaring that the boundary of Georgia 'does, and did, and of a right ought to extend to the Mississippi,' resting the right to such an extent of boundary upon her charter, and the Articles of Confederation. The charter had been given up long before, and therefore no claim cloud be sustained under that; and it is clear the confederation settled nothing in relation to the title to these lands. Georgia, in her constitution of 1793, after setting forth her boundary as in the act of 1783, declares that 'all the territory without the present temporary line, and within the limits aforesaid (that is, between the Indian boundary and the Mississippi,) is now, and of right, the property of the free citizens of this State.' By this same article authority is given to sell to the United States the land lying west of the Chattahooche, and to procure an extinguishment of Indian claims to the land east of that river. The boundary of the ordinary jurisdiction of Georgia- 'the temporary line'- is here recognized in her constitution and the Cherokee country as lying without that boundary, as also the right of the Cherokees thereto. The purpose of Georgia was to establish in herself the right of pre-emption, as adverse to the right claimed by the United States.
After twenty years dispute upon this subject, in 1802, commissioners mutually appointed by the United States of the one part, and Georgia of the other, settled this much agitated and long disputed subject. Georgia ceded to the United States the land west of the Chattahooche, now Alabama and Mississippi, the United States paying her one million two hundred and fifty thousand dollars, and taking it subject to certain other claims, and among them the Yazoo claim, for which we have paid about five millions. The United States ceded to Georgia the land lying east of said river, or the line of cession, whatever it was, and west of the Indian boundary, or the boundary of her ordinary jurisdiction, and engaged to extinguish the Indian title to it 'as early as the same could be peaceably obtained on reasonable terms.' The words of cession were, 'the United States cede to the State of Georgia whatever claim right or title they may have to the jurisdiction or soil of any lands' describing them. It is an assignment, or release of the right which the United States had to the jurisdiction and the soil. Now, sir, what was that? Not a right to dictate laws to the Cherokees! not a right to cancel their laws and customs; not a right to invade, cut up, and distribute their country at pleasure. No, sir; the United States never claimed, nor had, nor exercised that right. All our obligations to the Cherokees by treaties, laws, and long established intercourse, were incompatible with it. Not the federative obligation we were under to protect the Cherokees. That was, in no sense, a jurisdictional right, but an obligation, growing out of treaty stipulations-a trust, personal and confidential, to be exercised by the United States, and not assignable or removable, but by the consent of the Cherokees. Nor was it intended to be 'ceded;' for it has been recognized in ten successive treaties, since the cession, still existing in the United States. It was a trust, for assuming which the United States received an equivalent-for which they were paid. It conferred no favor, but imposed an obligation- one, therefore, that Georgia would not have been willing to receive if the United States could have transferred it. What was it, then? Simply and solely the right of pre-emption. This was all the 'claim, right, or title,' the United States had to the 'soil'. And the right to protect that right of pre-emption-to defend it, if need be, in any way in which it might be assailed-was all the claim, right or title the United States could, or did assign, or attempt to assign,to Georgia. But this whole country was then subject to the Indian title, possessed by the Indian nations, under the government of the Indian laws, such as they were, and fully and absolutely, with the limitations I have named, and those not at all affecting their sovereignty. In this condition of things the United States stipulated with Georgia to extinguish the Indian title. When? When it could be done peaceably-by treaty, not force-by cession, not usurpation-with the free consent, not against the will of the Cherokees. Here was no stipulation on the part of the United States, express or implied, to adopt any expedient to hasten the extinguishment of their title,which would not be open, fair, and honorable; not even when it could be done 'peaceably,' unless on 'reasonable terms'- for a fair equivalent-not at all events and hazards: -not an obligation absolute but conditional. And if the Cherokees refuse to sell and to leave their country, the United States are under no obligation to Georgia, other than to keep up a standing offer of reasonable terms to the Cherokees. This certainly is the case, if we subject the compact to any rule of right reason, by which contracts with individuals are governed. The land was not hers before. The compact is an inadmission (sic) of it. It is not to become hers until the event happens that is to make it hers; and that is the extinguishment of the Indian title. Conformably to this view both parties acted, for the twenty-six years next succeeding the compact. If Georgia be now right, the Intercourse Law of 1802, which was in force when her compact was made, was a direct invasion of her sovereignty. Did she ask for its repeal? No, sir. Her courts enforced it, and have done so ever since. The treaties then existing were also upon her present assumption and invasion of her sovereignty, interdicting the governor from passing a line within her own jurisdiction from entering or leaving the city of Savannah, for example. Did she require that they should be modified or annulled? Not only no stipulation was made on this subject, when it was under examination by the commissioners, but no request even. And until very lately, she has acquiesced in them, and in ten other successive treaties of the same character made since, taking the fruits of them without an intimation to the Indian nations that they were void, or that they were parting with their land for nothing. Now, sir, I say this question- this long disputed, and, if your please, vexed question-is settled; is not open to re-examination by Georgia. If there be force in law, or force in treaties, or force in contract, this question is settled, and Georgia is bound and estopped on this subject.
But, admitting the right of pre-emption to these lands to be in Georgia, without restriction or limitation, by virtue of the compact of 1802, and that she may extinguish the Indian title, let us see how she may do it under the compact, by which she claims the right to do it. This is supposing her not bound by the laws or treaties of the United States, but by the act she affirms and under which she claims.
One article of that compact was, that the ordinance of 1787, 'in all its parts, should extend to the territory contained in the act of cession,' except in one particular, not material here to be considered. One part of that ordinance of 1787 was, that 'the utmost good faith should always be observed towards the Indians, their lands and property should never be taken from them without their consent; and in their property, rights, and liberty, they never should be invaded or disturbed, unless in just and lawful wars, authorized by Congress, but laws founded in justice and humanity should from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.' Another part of the compact was, that, whenever any new States, that might be formed out of the territory so ceded, should be admitted into the Union, 'it should be on equal footing with the original States, in all respects whatever.'
This article in the ordinance of 1787 in relation to the Indians, is declaratory of the rule of justice and policy to which all the States are subject, and by which they are to be governed; as the new States are to come into the Union 'on equal terms with the old States in all respects whatever,' entitled to the same privileges, and subject to the same duties. When, therefore, the old States, require of the new 'to make laws to prevent wrongs being done to the Indians,-that good faith shall always be observed, that their property, rights and liberty shall not be invaded,' it is an admission that they are under the same obligations. Indeed, these are such principles of natural justice as bind all men, whether declared or not. They, at least, are not unconstitutional principles. Now, sir, can anything be more clear than that Georgia here admits that the Indians have land-have property-have rights-have liberty? that, in the enjoyment of them, they are never to be invaded nor disturbed? or, if at all, only in just and lawful wars, authorized by Congress? This is what Georgia concedes to, and affirms of the Indians west of the line of cession-a line that runs through the Cherokee Nation. This is what she imposes upon the new States as a fundamental law of their being, subject to which they come into the Union. If true of the natives of Alabama and Mississippi, is it not true also of the natives belonging to the same nation on the east as well as on the west side of the line of cession? of Georgia as well as of Alabama and Mississippi? Does this compact make a distinction among the people of the same tribe? or between the lands they have seen from the mountains or passed in the chase, and those they have cultivate? The Cherokees have not only this land, property, and liberty, and these rights here spoken of, but, in these they are never to be invaded nor disturbed by any State; never, except in a war declared by Congress. How then can Georgia extinguish the Indian title, take possession of the Indian lands without their consent, unless she violates her own compact,as well as the laws and treaties of the United States? But has she not disturbed the Cherokee's Nation,and invaded their property, rights and liberty? If by an act to make 'all the laws, ordinances, orders and regulations of a nation,' as if they had never been; if to subject the people of it to alien laws, and, at the same time, to exclude in any suit the evidence of the laws, usages and customs upon which their property, rights, and liberty all rest as upon their basis, and without which there can be no property, or distinction of property, or rights, or liberty,-by not disturbing and invading their property, rights and liberty, will you tell me, sir, what is? If this is not something more than making laws, founded in justice and humanity, to prevent wrongs being done to them, what would be?
Mr. Speaker, there is not an act of Georgia, since Oglethorpe first planted his foot upon the site of Savannah, when duly considered; there is, not a resolve, ordinance or law of Congress; there is not a treaty of the United States with the Indian tribes, that does not tend to establish the fact, that the Indians are the proprietors of the lands and hunting grounds they claim, subject only to the restriction upon their right of alienation. You might have put the question to every man in this nation, or child on the frontier, and he would have told you so, until the legislation of the States, aided by interest, instructed him otherwise. What then becomes of the tenancy at will-of sufferance as asserted by Georgia? Not one act, law or treaty that does not establish the fact that the Cherokees are sovereign. Sir, when were they otherwise? In what field were they conquered? Produce the proof. But were there something in the shape of evidence, it would be controlled by a single, undisputed, admitted fact-here is the nation, until his invasion of it, still sovereign. There is no tradition that has not been lost in its descent, that it was ever otherwise than sovereign. The pyramids of Egypt, upon their own broad and solid foundations are no better proof of themselves, than the Cherokee Nation is of its sovereignty. Sir, the emblems** of it were sparkling in the sun, when the white men, who now inhabit Georgia, and all who ever did, were in the loins of their European ancestry; and the bird that bore these emblems aloft in the upper skies-the region that clouds never darkened-was not more the king of birds, than the Cherokees were the lords of the country in which they dwelt, acknowledging no supremacy but that of the Great Spirit, and awed by no power but his-absolute, erect,and indomitable, as any creatures upon the earth the Deity ever formed.
But it is said the Constitution forbids the 'erection of a new State within the jurisdiction of another State,' and therefore the Cherokee government cannot be tolerated. Before I examined the subject, I was embarrassed by this consideration. But it will be found that this article was drawn with great caution and forecast, and for the very purpose of saving these little sovereignties of the aboriginal inhabitants. In the first place, as has been clearly shown in this debate, they are not a 'State' within the meaning of the Constitution. In the next place, they are not a 'new State.' They were sovereignties when the Constitution was adopted. Therefore the existence and toleration of them was then as such a violation of the Constitution as it is now. According to the Georgia doctrine, the government of the United States was then bound to do what it is now doing; that is, to put an end to the Cherokee Nation. In the third place, if a 'new State', it is not a State formed 'within the jurisdiction' of Georgia. The Constitution does not say, in the often repeated phrase, 'within the chartered limits' of 'geographical limits,' of Georgia. No such thing. The Indian boundary is the limit of the jurisdiction of Georgia. No such thing. The Indian boundary is the limit of the jurisdiction of Georgia,- The other lines indicate the extent of country to which she claims the right of pre-emption, and by every new purchase, of adding to her territory, and thus extending the limits of her jurisdiction.
These equivocal terms were rejected, and the word 'jurisdiction' was substituted by the framers of the Constitution, extending to the Indian boundary only, and being so considered by Georgia herself, down to the time of this dispute. Now, I take it upon myself to say, that, after the adoption of the Constitution, there was no pretence for affirming that the Cherokees were within the jurisdiction or Georgia.
What the views of the framers of that instrument were in relation of these remnants of once mighty nations, I cannot say. Probably they looked forward to the time when they would melt away or mingle with the current of white population, or pass off in some other form. Certain I am it was not their intention that 'in their property, rights or liberty they should ever be invaded or disturbed.' This our ancestors said in 1787, and placed it on record, and Georgia said the same in 1802. The Cherokee Nation is not therefore a new State, formed within the 'jurisdiction of Georgia.'
I do not remark upon the improvement made in the Cherokee form of government; for any man of sense must see that that can make no difference.- The more perfect the system, the better; and the less the trouble from it.
It has been said also, that the United States have not extinguished the Indian title to the lands in question, as agreed at the cession. I have already remarked upon the conditions of the obligations then entered into; and it is a full answer to this complaint to say, that the United States have extinguished the title until the Indians have refused to cede another acre, and that they have been always ready and willing, and are now ready to do it, if the Indians will consent to it.
Then again, it is said that the indisposition to sell is the result of the civilization of the Cherokees, and that that has been brought about by the agency of the government. The answer to this is, that the United States were under obligations to do what they have done, prior to the compact of 1802; and this was known to Georgia, and she took the stipulation, subject to this obligation, which she distinctly recognized in her own compact.
Again, it has been argued against some of the treaties guarantying this country to the Cherokees, that the 'just claims of the State of Georgia were prejudiced' there by, contrary to the Constitution. This is begging the question; for Georgia has no 'just claim' to the Cherokee country, and therefore none is prejudiced. Georgia, has no right, constitutional or any other, that is incompatible with the engagements you have made to the Indian nations, or that is invaded by any law you have passed 'to prevent wrongs being done to them, or to preserve peace and friendship with them.'
Sir, you cannot take a step in the argument towards the result contended for by the friends of this bill, without blotting out a treaty, or tearing a seal from your bond. I give to the bill the connection which it has in fact, whatever may be said to the contrary, with the laws of the States to which it is subsidiary, and with the decision of the President, that the Indians must submit or remove. Now, sir, I say you are bound to protect them where they are, if they claim it at you hands; that you violate no right of the States in doing it, and will violate the rights of the Indian nations by not doing it; that when the United States, in consideration of the cession of land made by the Cherokees to this government, guarantied to them the 'remainder of their country forever,' you meant something by it. Sir, it is in vain to talk upon the question; impossible patiently to discuss it. If you have honor, it is pledged; if you have truth, it is pledged; if you have faith, it is pledged;- a nation's faith, and truth, and honor! and to whom pledged? To the weak, the defenseless, the dependent. Fidem Anglorum in Foedcre eligimus, they say to you. Selecting your faith and no other,-you would not have it otherwise,-we reposed our trust and confidence in you, and you alone. And, for what pledged? Wherever you open our eyes, you see it, and wherever you plant your foot upon the earth, you stand upon it. And by whom pledged? By a nation in its youth, a republic, boastful of its liberty may it never be unmindful of its honor. Sir your decision upon this subject is not to be rolled up in the scroll of your journal, and forgotten. The transaction of this day, with the events it will give rise to, will stand out upon the canvass in all future delineations of this quarter of the globe, putting your deeds of glory in the shade. You will see it everywhere- on the page of history, in the essay of the moralist, in the tract of the jurist. You will see it in the vision of the poet; you will feel it in the sting of the satirist; you will encounter it in the indignant frowns of the friends of liberty and the rights of man, wherever despotism has not subdued to its dominion the very look. You will meet it upon the stage; you will read it in the novel and the eyes of your children's children, throughout all generations, will gush with tears as they run over the story, unless the oblivion of another age of darkness should come over the world, and blot out the record and the memory of it. And, sir, you will meet it at the bar above. The Cherokees, if they are men, cannot submit to such laws and such degradation. They must go. Urged by such persuasions, they must consent to go. If you will not interfere in their behalf, the result is inevitable-the object will be accomplished. When the Cherokee takes his last look on the cabin he has reared-of the field he has cultivated-of the ground that covers the ashes of his fathers for unknown generations, and of his family and friends, and leaves all to the desecrated by the greedy and obtrusive borderer- Sir, I will not venture upon the description of this scene of a nation's exit and exile. I will only say-I would not encounter the secret, silent prayer that should be breathed from the heart of one of these sufferers, armed with the energy that faith and hope would give it, if there be a God that avenges the wrongs of the injured, for all the land the sun has looked upon. These children of nature will go to the stake, and bid you strike without the motion of a muscle; but if they can bear this; if they have reduced whatever there is of earth about them, in such a subjection to the spirit within, as to bear this, we are the men to go into the wilderness and leave them here as our betters.
Mr. Speaker, there are many collateral arguments, bearing upon the main point of this discussion, that I intended to have urged, and many directly in my way, that I have passed over, and most of them I have but touched. But full of interest as this question is, I dare not venture longer upon the patience of the House. At this age of the world, and in view of what the original possessors of this continent have been, and what we were,and of what they have become,and we are; anything but the deep and lasting infamy-so say nothing of the appalling guilt-of a breach of faith with the Indian tribes. If the great men who have gone before us were so improvident as to involve the United States in contradictory and incompatible obligations, a breach of faith with all the world besides, rather than these our confiding neighbors. If we must be made to blush, let it be before our equals. Let there be at least dignity in our humiliation, and-something besides unmixed selfishness, and domineering cowardice, in the act that produces it.
* New York ceded in 1781, Virginia, in 1784, Massachuasetts, in 1785, Connecticut, in 1786, South Carolina, in 1787, North Carolina, in 1789, Georgia, in 1802.
** The feathers of the Eagle