From the Mobile Commercial Register.
We are indebted to the agent of the Marshall of this district, for the following letter of instructions from the Secretary of War, and the opinion of the Attorney General of the United States on the questions growing out of the conduct of intruders upon the Creek Indians' lands in this State. We hasten to lay them before our readers.
DEPARTMENT OF WAR,
August 26th, 1833
Sir:- I have received from Mr. Austill, reports of his proceedings in carrying into effect the instructions of this department, for removing intruders from the tract of country ceded to the United States by the Creek Indians, March 24th, 1832. I regret to perceive the difficulties he has had to contend with, in the execution of his duty. It is surprising that actual claims should be set up to take possession of the land, and that the indulgence which the government has granted to settlers, should be considered as conferring upon them positive rights.
That the Indians have been seriously injured, there can be doubt, and as little that it is the duty of the United States, faithfully to carry into effect the treaty which has been formed. I cannot but hope that every citizen of Alabama will appreciate the obligations which have been incurred, and will refrain from any act tending to violate the treaty.
It is evident from the report of Mr. Austill, that the indulgence which has been granted to actual settlers, has been very injurious to the Indians.
Individuals are favored by some of the Creeks, and are obnoxious to others, and it appears that the Chiefs have made great objections to any arrangement allowing settlers to remain upon the land. Under these circumstances, the president directs that so far as persons now in the ceded Territory, have conducted in conformity with the views taken in my letter to Messrs McCoy, Clay, and Mardis, enclosed to you December 10th, 1832, and have been permitted by the Deputy Marshall to remain until this time, that they are allowed to continue unmolested, still refraining from injuring the Indians, until their crops are gathered, and after that period you will require them without delay to move beyond the ceded territory. It is utterly inexpedient with the experience which has been had on this subject and the evils are threatened, longer to continue the indulgence heretofore granted. All other white persons living on those lands, and not coming within the above description, will be removed without distinction and without delay.
In consequence of the suggestion of Mr. Austill, I have asked and obtained the opinion of the Attorney General on this subject generally; and I transmit a copy of it, that you may give it general publicity, in order that all persons interested may see how unfounded is any claim to hold possession of this land, or legally to resist the instructions of the Government for the removal of the intruders. You are authorized to publish this opinion, together with such portion of your instructions as you may think necessary, in such newspapers in Alabama, as you may think best calculated to give general information.
While the Government have a solemn duty to perform towards the Indians, which they cannot and will not neglect,they are still anxious that it should be performed with as little injury to our citizens as possible. You will take care therefore that the subject is fully explained and understood, and will use as much forbearance as is consistent with the execution of your duty, before a resort is had to actual force, ' when force is applied, it will be limited to the actual removal of intruders from the ceded territory.
You will transmit without delay to the district Attorney of the Southern District of Alabama, the names of all persons who hereafter intrude upon or who now live upon the ceded land, and refuse to remove agreeably to your requisition, together with the names of the witnesses who can prove the necessary facts; and the District Attorney has been instructed to commence an immediate prosecuting against all such persons. This measure is considered so important to the accomplishment of the object, that you will not neglect it under any circumstances, or in any case.
Mr. Austill has directed that instructions may be given to prevent the sale of whiskey upon the Creek lands, stating that the practice prevails to a great extent to the ruin of the Indians. However useful such a measure might be, it is not considered competent for the Executive to direct it. The only power vested in the President is to remove the intruders from the public lands. The state of Alabama has jurisdiction over that district of country, and her Legislature can only provide a remedy for this evil, and how courts of justice enforce it.
I have also transmitted to Mr. Austill a copy of this letter.
Instructions have been given to add another company to the force now employed in this duty.
Very respectfully, I am Sir,
Your obedient servant.
Robert L. Crawford, Esq.
Marshall of the S. Dist. of Ala.
Office, August 22.
Sir:- In answer to the enquiry continued in your letter of August 19, I have the honor to state, that in my opinion the President may lawfully direct the Marshal of the District and employ such military force as he may judge necessary and proper to remove intruders from the lands in Alabama, ceded by the Creek Indians to the United States by treaty of the 28th March 1832,
The treaty with the Creek Indians provides that a survey shall be made of the land ceded to the United States, and after the survey is completed, certain rights of selection are preserved to ninety of the principal chiefs ' heads of families. The survey is not yet completed, and consequently no selections have been made, the fifth article of that treaty provides 'That all intruders upon the country thereby ceded shall be removed therefrom, in the same manner as intruders may be removed by law from other public lands, until the country is surveyed and the selections made.'
The white men who have entered upon this land are unquestionably intruders, within the meaning of this law. The lands belong to the United States and to chiefs of the Creek Nation could not give any permission to any white men to settle on them, without the consent of the United States. But the chiefs, it appears, have given to them no such permission, and desire their removal; and the only excuse alleged for these intrusions is the license of individual Indians to white men to settle on the land of the United States, must be utterly nugatory and void. And the men who have entered and taken possession under pretense of such permissions, are intruders on the lands of the United Sates.
The question is, can the United States use the military force to remove them? The language of the act of March 3, 1807, is too plain to be mistaken. It gives the President, by express words, the power 'to employ such military force as he may judge necessary and proper,' to remove persons who may intrude upon any lands ceded or secured to the United States, by any treaty made with a foreign nation, and by a cession from any state to the United States.
The reasoning for confining the act of Congress to cessions of this description, is sufficiently obvious. All of the large and unsettled tracts of country which belong to the United States, were acquired either by treaty with foreign nations or by cession from one of the states. And it was only on lands of that description, that any evil could arise from intrusions and settlements, of sufficient importance to the public, to make it advisable to use the summary and forcible remedy authorized by the act of Congress. The lands on which these intrusions have been made, are certainly embraced both by the words and spirit and the object of the law. For it was ceded to the United States by the State of Georgia, and is a portion of the unsettled country which the act of 1807 was designed to protect.
The words of the law being plain, and clearly embracing in its provisions the lands in question, what legal objection can there be in its prompt and faithful execution? Had not Congress the power to pass such a law?
It is true that these lands lie in the state of Alabama, and that state has extended its laws, and the jurisdiction of its tribunals over the whole territory included by its limits. But that circumstance cannot render this act of Congress unconstitutional and uncooperative in that State. For the act of Congress produces no conflict of jurisdiction or of sovereignty with the state of Alabama. It proposes to defend the possessions of the United States against wrong doers who without any pretence of title, and in open violation of the rights of the United States, intrude upon the public property,and appropriate it to their own use. And if there is any conflict, it is only with persons of this description and not with the state of Alabama, or the proper authority of that state.
The power of Congress to pass this law, has, I believe, long been regarded as a settled point, and the government have acted upon it accordingly.
I have now before me two opinions given in the year 1821 by one of my predecessors in this office- one of the opinions being in relation to the public lands in the state of Illinois, and the other in Mississippi; and in both of these cases the right of the United States to execute the law, is treated as undoubted. And in this very case, the treaty with the Creek Indians pledges the United States to act upon this law in the removal of intruders, and the Senate by ratifying the treaty have shown that in the judgment of that body, there was no constitutional objection to the exercise of the power. Indeed it can hardly be supposed by any one, that the United States have not the same right that an individual possesses to defend their lawful possessions by force against a trespasser.- Must they surrender up the public property whenever lawless violence attempts to seize upon it. Some of the forts and arsenals, and lighthouses, are, I understand, upon lands which have been purchased from individuals, without any cession of jurisdiction from the state in which they lie. It cannot be imagined that the United States are bound to stand idle and see their possessions wrested from them-and then be put to their action of ejectment to regain possession of their forts, arsenals, and lighthouses, or bound to resort a replevin to recover the public arms and accoutrements, or an action of trover to obtain compensation in damages for their loss. Such a proposition would strike every one as utterly untenable, Yet it would be quite as unreasonable to require them to suffer without resistance, the most valuable bodies of vacant land, which they hold in different states, to be overrun and seized on by lawless intruders, and put the United States to the necessity of ejectment or other legal proceedings against each separate individual in order to regain the possession. The public domain would be of no value; or worse than of no value; if such a doctrine could be maintained. It is clear that a private individual may defend the possession of his property against a wrongdoer who attempts to drive him of it, and may lawfully use any force necessary for that purpose.
There can be reason why a government holding property should be denied the same right. And the act of March 3, 1807, does no more than provide the means necessary to defend the possession of the public property and authorizes the President to use them.
The fact that these intruders are now on the land and have been for some time, cannot alter the question. The United States have never abandoned their possession- and the intruders have never acquired a lawful possession against them-they were mere trespasses from the beginning, and continue so to the present time, and have no better right now, than they had at the moment when they first entered. The lawful possession is still in the United States, and may in my opinion be defended against such trespassers, according to the directions of the act of 1807, by the removal of the intruders by military force.
The papers are herewith returned-
I am sir, 'c.
(Signed) R. B. TANEY
To the Hon. The Secretary of War.