YALE UNIVERSITY LIBRARY DEPOSITED BY THE LINONIA .AND BROTHERS LIBRARY SPEECHES PASSAGE OF liHB'BILL REMOVAL OF THE INDIANS, DELIVERED IN THE <&onQVtun of tije mniUH States, APRIL AND MAY, 1830. Uoston: PUBLISHED BY PERKINS AND MARVIN. NEW YORK : JONATHAN LEAVITT. 1830. INTRODUCTION. ¦ From the first settlement of North America by Englishmen, it has been the practice to obtain Indian lands through the medium of trea ties or voluntary purchases. In a few cases, lands were wrested from the original possessors in war ; but the colonists never avowed the desire of conquest as a justifiable cause of war. Though nearly all the parts of the United States, which are now inhabited by whites, were purchased from Indians, yet it does not follow that undue measures were not frequently resorted to, in order to induce a sale. Among these measures, unreasonable importunity deserves to be reckoned. New lands were obtained more rapidly than the necessities ofthe whites demanded; and the eagerness, with which acquisitions of territory were made from the Indians, naturally caused a good deal of apprehension in their minds. As the British power on this continent increased, the claims and rights of the Indians were generally admitted. No pretensions were made to the right of taking their land from them without their con sent. If they sold any part of their territory, they were required to sell it to the government, or the validity of the sale was not acknowl edged by the British tribunals. This was the state of things at the commencement of the revolutionary war. As soon as the Continental Congress began to act as the organ of the United States, (that is, as the organ of a nation which had jtfst sprung into existence,) measures were taken to conciliate the favor of the Indians. They were addressed as independent sovereignties. They were entreated to remain neutral. Their territorial rights were guarantied to them ; and they were dealt with, in all respects, as capable of making treaties, and of retaining forever their original rights of territory and government. After the peace of 1763, the Confederated States entered into trea ties with the large south-western tribes, the Cherokees, Creeks, Choc- taws and Chickasaws. In this manner boundaries were fixed, and an implicit guaranty of territory was given. At the adoption of the Federal Constitution, all these treaties were confirmed and ratified, not by the nation merely, as a whole, but by each State, as it perform ed the solemn act of corning into the Union. IV INTRODUCTION. President Washington, in the early part of his administration, ap plied directly to the Senate, and asked whether that body would ad vise and consent to give a solemn guaranty to the Creek and Chero kee nations of all their lands not ceded. To this question, proposed first in 1789, and again a year afterwards, the Senate gave, in each instance, an afiirmative answer, without a dissenting voice. Treaties were made on this basis, first at New York with the Creeks, then at Holston with the Cherokees, in both of which the guaranty was sol emnly given, and afterwards solemnly ratified by the Senate. Treaties were made by the United States with Indian nations, as occasion required ; the number of such treaties amounting to more than three in a year, on an average. Several of these treaties were negotiated with the tribes, whose residence was within the chartered limits of Georgia. In 1002, a compact wasmade between the United States and Georgia, by which a long controversy was settled, and the United States bound themselves to extinguish the Indian title to lands within the chartered limits of that State. The obligation was conditional, Ijowever ; and there was nothing in the compact, which implied that the United States did not acknowledge the perfect right of the Indians to the peaceable and exclusive occupancy of their country forever. Since 1802, numerous treaties have been made with the Indians, in most of which, portions of their territory were ceded to the United States. In thi^ manner, Georgia has received about 20,000,000 of acres under the compact ; and about 5,000,000 of acres now remain in the occupancy of the Cherokees, within the chartered limits of that State. Since the year 1819, the Cherokees have peremptorily and constantly refused to sell another foot of land. In the mean time, Georgia was constantly importuning the general government to extinguish the Cherokee title by treaty ; always admitting; that this was the only way, in which the Indian title could be extin guished. But suddenly, in December 1627, the legislature and executive of Georgia assumed an attitude entirely new, and totally unlike any position which had ever" before been assumed by any State in the Union, or by the United States. The new attitude was produced by the annunciation of the following doctrines, and others of a similar character1;., viz. tnat Georgia has a perfect title, by the right of dis covery, to all the land within her chartered limits; that the Indians have no title, but a mere occupancy, determinable at the pleasure of Georgia ; that she may take possession of their lands by force ; that the United States are bound to extinguish the Indian title, either by negotiation or force ; and that, as the United States have failed in their engagements, Georgia has a right to lafie the matter into her own hands. As a consequence of these doctrines, Georgia declares, that, if otbgr INTRODUCTION. V meang fail, she will resort to violence in support of her claims; and that, as she wants the Cherokee lands, she will have them. Following up these principles, in 1828 and 1829, Georgia extends her laws over the Cherokees, and enacts several provisions of a most oppressive and tyrannical character. The Cherokees immediately resort to the guaranty of the United States, and ask protection against these laws. The President of the United States informs them, that he has no constitutional power to protect them. They next petition Congress ; and, while their petition is pending and unanswered, a bill, is introduced for the purpose of enabling them to remove. They say, that they do not wish to remove, but to remain on the land of their fathers. In this state of things, the bill, in opposition to which the follow ing speeches were delivered, became the topic of debate. It has been suggested, that the heads of arguments in favor of the bill should here be given ; and, after some hesitation, the editor has concluded to give a brief abstract of them. The hesitation arose from the na ture and character of these arguments. They are almost universally founded on false assumptions. But many readers would have no conception how utterly groundless the assumptions are ; and to send them forth to the. public unexplained, seems to give them a standing to which they are by no means entitled. How many readers are there, in every community, who look at an introduction of a book, with a few indiscriminate passages here and there, and read no>more ! If a plausible case is made out at the, beginning, they take it for granted, that the facts, at least, are correctly stated. But nothing could be more fallacious in reference to the case before us. It was stated, by the advocates ofthe bill, that the United States had bound themselves, by the compact of 1802, to extinguish the Indian title to lands within the limits of Georgia ; and many elaborate arguments rested on this assumption. But the fact, that the engagement was conditional, was omitted. The advocates of the bill asserted, also, that other States had legislated over the Indians in the same manner, and to the same extent, as Georgia has recently done. For this as sertion there is no support whatever. Let these two instances stand as specimens. In the following statement of topics, the positions, if not the words, are taken from printed speeches of advocates ofthe bill, and from the ' reports of the committees on Indian affairs. On the question, whether the Indians had any right to their coun- y try or not, it was alleged, by the advocates of the bill, , ,y. ¦f That the king of England claimed the right of disposing of teitrj- < tory, on this continent,r;without any regard to the possession of the Indians ; that they were considered merely as an incumbrance ; aM that' the proclamation of 1763 assumed the sovereignty of Great Britain over the Indians : VI INTRODUCTION. j . That, on the declaration of independence, the States, respectively, succeeded to the sovereignty of the mother country : That, from the first settlement of North America, the natives were subjected to the arts and the arms of -Europeans ; that civilization and force prevailed ; and that, although the course of measures with the Indians cannot be justified, it will always be imitated : That the Cherokees are a conquered people, having been the allies of Great Britain in the revolutionary war : and That, being a conquered people, they have no claim to territory or I self-government. It is not unjust, or oppressive, therefore, in Georgia to assert her claims to the land of the Cherokees. In answer to the plea for protection, which the Cherokees offer, it was urged, That, although many compacts had been made between the United States and Indians, which had been called treaties, and which had been sent to the Senate and ratified as treaties, yet, when made with tribes residing in any State, they were not in fact treaties, within the meaning of the Constitution : That these compacts, which are called treaties, were submitted to by the several States, because the States acquired lands in this man ner ; but when the States were limited in their jurisdiction, and re strained in their rights, by these compacts, it could not be expected that they would submit any longer : That compacts with Indians not within the limits of States are treaties,. according to the Constitution; because, in these cases, the. national government alone can treat with them : That the guaranty given in the treaty of Holston was intended more for the intimidation of the whites, than as a serious protection of the Indians : » That, when the guaranty was repeated, seven years afterwards, there was no necessity of repeating it : and That it is very absurd to suppose, that independent States will suf fer their limits to be curtailed by tribes of savages. On the subject of the rights of Georgia, as an independent State, it was urged, That she would assert her right to a jurisdiction over all the terri tory within" her own .limits : That, although she has a very inconsiderable interest in the question now before Congress, she is determined to assert and maintain the rights of sovereign and independent States : That neither the United States, nor any separate State, has a riirht, to demand of Georgia the reasons of her conduct in regard to her own population, or any class of persons residing within her limits : and That nothing will prevent her executing her purposes in this matter. INTRODUCTION. Vil It was urged, also, that Georgia had been greatly vilified in this controversy ; that she is " the evening chant and the matin song of all the calumniators in the Union, who have taken the Cherokees in to their holy keeping;" and that "no epithet is too strong, no re proach too foul, to cast upon her, for having followed the example of ten States, in the exercise of jurisdiction over the Indians within their territory." Other States were said to have enacted much severer laws, in re gard to the Indians, than the present laws of Georgia, which are so much complained of; and yet no sympathy has been called forth in behalf of any Indian tribe but the Cherokees. As to the conflicting claims of Georgia and the Cherokees, while ¦ some advocates of the bill considered all existing treaties with In dians as mere nullities, others held, that the treaties would be bind ing on the United States, were it not for pre-existing obligations, in compatible with these treaties. They admitted, that general Wash ington and his cabinet, and the Senate of the First Congress, and all the national authorities from 1789 till quite recently, supposed that we were bound ; that the people of the United States had all along supposed themselves to be bound ; and that the Indians had always supposed the United States to be bound by these treaties. It was not denied, that the stipulations are all plain ; that they were honestly intended, and allow but of one interpretation, which is in favor of the Indians. But it was argued, that the United States had guaran tied the integrity of all the separate States, and therefore could not guaranty the possession of the Indians residing upon any part of the chartered territory of States. The general government must there fore do the best it can. When it cannot fulfil an obligation, it must indemnify for the failure to fulfil. As to the expediency of the removal at the Indians, it was urged, That the acquisition of the lands, which the south-western tribes * occupy, would open a large tract for sale and settlement ; that the convenience of the. Southern States would be much promoted ; and that the proceeds of the sales of those lands would more than reim burse all the expenses attending the contemplated removal. It was stated, also, that the removal ofthe Indians would be great ly to their advantage, and, on this account, should receive the sup port of all their real friends. The country to which they were invited to remove, was represent ed as very fertile, and abundantly large for a residence of all the tribes. The title to it may be permanently guarantied ; and the emi grating Indians will live under the sole protection of the United States. Here they will not be troubled by the conflicting claims of States exercising jurisdiction over them. They will feel themselves free from this constant apprehension. They can proceed, there fore, in their plans of civilization without interruption. The strong V1H INTRODUCTION. arm of the general government will protect them from intruders. They will be out of the reach of the whites, and beyond the pres sure of population. The benevolence of the government and of in dividuals can here display itself in the best plans for the melioration of the Indian character. In carrying on the business of removal, all the advocates of the bill disclaimed a resort to force. The subject is to be fairly proposed to the Indians ; and, if they are willing to remove, the government will kindly aid them in doing so. If they prefer to stay, they must come under State laws, and, of course, be subject to all the laws' which the States shall see fit to enact hereafter. From the operation of these laws the United States cannot protect them. The present condition of the Indians was represented as being ex ceedingly wretched. They were said to be, generally, in a more hopeless state than at any previous period of their history. The chiefs were charged with ruling the common people with severity. It was said, that the chiefs appropriate all the annuities to their own benefit. The sympathy professed, in different parts of the United States, for the Cherokees, was described as the work of fanatics, and pre tended philanthropists, who had their own purposes to answer, and who were well paid for their services from the Cherokee treasury. This allegation is so gross a slander, that it would be wrong to re peat it without saying, that it is totally destitute of foundation ; and that there is not, and never was, a particle of evidence in support of it. The foregoing summary embraces, it is believed, all the arguments in favor of the bill. Some of its advocates expressed a strong belief that the removal ofthe Indians would be for their benefit ; but others boldly declared, that this was not their object, and that the Indians would not be improved in their condition, whether they should re move or remain. The opposition to the bill was made with great earnestness, and with every mark of entire sincerity. There was no indication, that the concern expressed for the national honor, and the dread of seeing a foul and indelible stain fixed upon the character of the country, were affected, or overstated. A deep solemnity pervaded the efforts of the honorable men, who exerted themselves to defeat a measure, which they declared to be, in their apprehension, inconceivably dis astrous. On the other hand, the advocates of the bill most evidently placed no reliance upon argument. They never met the statements and reasonings of their opponents ; but showed very clearly, that they trusted only to the power of self interest and party discipline. SPEECH OF THE HON. THEODORE FRELINGHUYSEN, SENATOR FROM HEW JERSEY, DELIVERED IN THE SENATE OF THE UNITED STATES, APRIL 7, 1830* The Bill to provide for an exchange of Lands with the Indians residing in any of the States or Territories, and for their removal West of the river Mississippi, being under con sideration, Mr. Frelinghuysen spoke as follows : — Mb. President : I propose an amendment to this bill, by the addition of two sections, in the form of provisos : — the first of which brings up to our consideration the nature of our public duties, in relation to the Indian Nations, and the second provides for the continuance of our future negotiations, by the mode of treaties, as in our past intercourse with them. The following is the amendment : " Provided always, That, until the said tribes or nations shall choose to remove, as by this act is contemplated, they shall be protected in their present possessions, and in the enjoyment of all their rights of territory and government, as heretofore exercised and enjoyed, from all interruptions and encroachments. " And provided also, That, before any removal shall take place of any ofthe said tribes or nations, and before any exchange or exchanges of land be made as aforesaid, the rights of any such tribes or nations in the premises shall be stipulated for, secured, and guarantied, by treaty or treaties, as heretofore made." The first of these sections discloses the real object sought by this bill, seemingly composed of harmless clauses. It supposes that the design of the system of which the present bill forms but a part, is 'really to remove all the Indian tribes beyond the Mississippi, or, in case of their refusal, to subject them to state sovereignty and legislation. The Hon. Senator, (Mr. White,) who yesterday addressed the Senate, found it necessary so to consider it ; and to anticipate and endeavor to meet all such objections to this course of policy, as he deemed worthy of a refutation. * This speech was commenced on the 7th, and concluded on the 9th, a part of' each day's session being consumed by tbe ordinary routine of business. The whole speech occupied the attention of the Senate about six hours. It is here much compressed. 1 2 MR. FRELINGHUYSEN S SPEECH. Sir, I prefer that this latent object should be put fully before us, that we and the nation may look at it, and freely scrutinize it. At an early stage of the present administration, its views and opinions on the interesting subject of our Indian relations, were developed in language ' not to be mistaken. It is greatly to be regretted, Sir, that our present chief magistrate did not pursue the wise and prudent policy of his exalted predecessor, President Washington, who, at a time of collision and difficulty with these tribes, came before the Senate, and laid open to them, in propositions for their approbation, the various important subjects involved in our relations. The annexed extract from the Journals of the Senate illustrates the principles of Washing ton's administration. It follows : " Saturday, August 22, 1789. " The President of the United States came into the Senate, attended by general Knox, and laid before the Senate the following state of facts, with the questions thereto annexed, for their advice and consent " This was a most important document. It developed all the collisions that existed between the Indian tribes and the States ; and referred to the consideration of the Senate certain leading principles of policy, which he thought it was wise to pursue. These principles are imbodied in seven distinct interrogato ries ; the fourth of which submits to the Senate " whether the United States shall solemnly guaranty to the Creeks their re maining territory, and maintain the same, if necessary, by a line of military posts ?" This question " was wholly answered in the affirmative" by that body, and the blank (for an appropriation of necessary funds) was ordered to be filled at the discretion of the President ofthe United States. Again, on the 11th of Au gust, 1790, President Washington sent a special message to the Senate by his Secretary, the subject matter of which he intro duces by the following suggestion : " Gentlemen of the Senate : " Although the treaty with the Creeks may be regarded as the main foundation of the future peace and prosperity of the Southwestern fron tier of the United States, yet, in order fully to effect so desirable an object, the treaties which have been entered into with the other tribes in that quarter, must be faithfully performed on our part." He then proceeds to remind the Senate, that, by the treaty with the Cherokees, in November, 1785, (the treaty of Hope well,) ' the said Cherokees placed themselves under the protec tion of the United States, and had a boundary assigned them ;' that the white people settled on the frontiers had openly vio lated the said boundary by intruding on the Indian lands ; that the United States in Congress assembled, on the first day of September, 1788, had, by their proclamation, forbidden all such unwarrantable intrusions, and enjoined the intruders to depart without loss of time ; but that there were still some refractory intruders remaining. The President then distinctly announces his determination to exert the powers intrusted to him by the MR. FRELINGHUYSEN'S SPEECH. 3 constitution, in order to carry into faithful execution the treaty of Hopewell, unless a new boundary should be arranged with the Cherokees, embracing the intrusive settlement, and compen sating the Cherokees for the cessions they shall make on the occasion. And, in view ofthe whole case, he requests the ad vice ofthe Senate, whether overtures shall be made to the Cher okees to arrange such new boundary, and concludes his com munication with the following emphatical question : " 3d. Shall the United States stipulate solemnly to guaranty the new boun dary which may be arranged ?" It produced as pointed a response — for the Senate " Resolved, In case a new or other boundary than that stipulated by the treaty of Hopewell, shall be concluded with the Cherokee Indians, that the Senate do advise and consent solemnly to guaranty the same." A new boundary was arranged by a second treaty ; the sol emn guarantee was given to the Cherokees ; and cogent, indeed, should be the causes that now lead us to think lightly of such sacred obligations. I lament, Sir, that so bright and illustrious a precedent was not regarded, and that the President had not yielded to the safe guidance of such high example ; and I deplore it the more, be cause it was concerning these very tribes, in the State of Geor gia, that general Washington chose to confer with his consti tutional advisers. Instead of this just proceeding, the present administration has thought proper, without the shghtest consultation with either House of Congress — without any opportunity for counsel cr concert, discussion or deliberation, on the part of these co-ordi nate branches ofthe government, to despatch the whole subject in a tone and style of decisive construction of our obligations, and of Indian rights. It would really seem, Sir, as if opinion was to be forestalled, and the door of inquiry shut forever upon these grave questions, so deeply implicating our national faith and honor. We must firmly protest against this executive disposition of these high interests. The government cannot rescind, modify or explain away our public treaties. They are the supreme law of the land, so declared to be by the constitution. They bind the President and all other departments, rulers and people. And when their provisions shall be controverted — when their breach or fulfilment become subjects of investigation — here, Sir, and in the other hall of our legislation, are such momentous concerns to be debated and considered. That we may freely exercise these essential powers, and review the proclaimed opin ions of the executive, I have submitted the first branch of the amendment. We possess the constitutional right to inquire wherefore it was, that, when some of these tribes appealed to the executive for protection, according to the terms of our trea ties with them, they received the answer that the government of the United States could not interpose to arrest or prevent the legislation of the States over them. Sir, this was a harsh 4 MR. FRELINGHUYSEN S SPEECH. measure, indeed, to faithful allies, that had so long reposed in confidence on a nation's faith. They had, in the darkest hour of trial, turned to the aegis which the most solemn pledges had provided for them, and were comforted by the conviction that it would continue to shed upon them a pure and untarnished beam of light and hope. Deep, indeed, must have been their despondency, when then- political father assured them that their confidence would be presumptuous, and dissuaded them from all expectation of relief. Mr. President: The instructions that have proceeded from the war department to the agents of Indian affairs have excited just and strong jealousies of the measures that are now recom mended. They have prompted this amendment, in the hope that, by some public and decided expression of our disapproba tion, the course of political management with these tribes may be changed, and our country saved from the dishonor of buying over the consent of corrupted chiefs to a traitorous surrender of their country. I will read a part of these instructions. They are from the war department to generals Carroll and Coffee, of the date of 30th May, 1829: " The past (remarks the Secretary, in respect to Indian councils') -has demonstrated their utter aversion to this mode, whilst it has been pade equally clear, that another mode promises greater success. In regard to the first, (that by councils,) the Indians have seen in the past, that it has been by the result of councils that the extent of their xountry has been from time to time diminished. They all comprehend this. Hence it is that those, who are interested in keeping them where they are, alarm their fears, and, by previous cautioning, induce them to reject all offers looking to this object. There is no doubt, however, but the mass ofthe people would be glad to emigrate ; and there is as little doubt that they are kept from this exercise of their choice by their chiefs and other interested and influential men," &c. Again : " Noth ing is more certain than that, if the chiefs and influential men could be brought into the measure, the rest would implicitly follow. It becomes, therefore, a matter of necessity, if the general government would ben efit these people, that it move upon them in the line of their own prejudices, and, by the adoption of any proper means, break the power that is warring with their best interests. The question is, How can this be best done,? Not, it is believed, for the reasons suggested, by means of a general council. There, they would be awakened to all the intimations which those who are opposed to their exchange of country might throw out ; and the consequence would be — what it has been a firm refusal to acquiesce. The best resort is believed to be that which is embraced in an appeal -to the chiefs and influential men, not together, but apart, at their own houses, and, by a proper exposition of their real condition, rouse them to think of that ; whilst offers to them, of extensive reservations in fee simple, and other rewards, would, it is hoped, result in obtaining their acquiescence." Let us analyze this singular state paper. It does not relish the congregation of Indian councils. In these assemblies, they deliberate and weigh the policy of measures — they calculate the results of proposed improvements. These councils imbody the MR. FRELINGHUYSEN S SPEECH. 5 collected wisdom of the tribes. Their influence is of the au thority of law. The people look to them for protection. They know that in the multitude of counsellor.-; there is safety. Hence nations, far in advance of the Indians, always meet in council, when their great interests are to be promoted or defended. But these special agents are discouraged from hoping that the object can be obtained in this good old-fashioned way. The Indians are too wise to be caught when the net is spread so fully in sight. They are directed to avoid all associations ; and, with the public purse in hand, to take the chiefs alone — to approach them individually, and at home — "fo meet them in the way of their prejudices." I admire the ingenious clothing of a most odious proposal. A strong hint is suggested to try the effect of terror, and, by a proper exposition of their real condition, rouse them to think upon that, and to follow this up with "large offers to them of extensive reservations in fee simple, and other rewards." The report made by one of these agents to the war department, dated September 2d, 1829, still further discloses the nature of the ex igencies to which the Indians are to be subjected, to constrain their removal. The agent observes, " The truth is, they (the Cherokees) rely with great confidence on a favorable report on the petition they have before Congress. If that is rejected, and the laws of the Slates are enforced, you will have no difficulty in obtaining an exchange of lands with them." It maybe true, that, if we withdraw our protection, give them over to the high-handed, heart-breaking legislation of the States, and drive them to despair, when mercenary inducements fail to win them, force and terror may compel them. We shall have no difficulty, the agent assures the war department. Sir, there will be one difficulty, that should be deemed insurmount able. Such a process will disgrace us in, the estimation of the whole civilized world. It will degrade us in our own eyes, and blot the page of our history vvith indelible dishonor. Now, Sir, I have brought this measure before the Senate, and wait with intense anxiety to see the final disposition of it. Where is the man who can, in view of such policy, open the door, or afford the slightest facility, to the operation of influ ences, that we should blush with honest shame to have employ ed with our equals in the scale of civilization? It is not in tended, Sir, to ascribe this policy exclusively to the present administration. Far from it. The truth is, we have long been gradually, and almost unconsciously, declining into these devi ous ways, and we shall inflict lasting injury upon our good name, unless we speedily abandon them. I now proceed to the discussion of those principles which, in my humble judgment, fully and clearly sustain the claims of the Indians to all their political and civil rights, as by them asserted. And here, Mr. President, I insist that, by immemorial posses sion, as the original tenants ofthe soil, they hold a title beyond and superior to that ofthe British crown and her colonies, and 1* 6 MR. FRELINGHUYSEN* S SPEECH. to all adverse pretensions of our Confederation and subsequent Union. God, in his providence, planted these tribes on this western continent, for aught that we know, before Great Brit ain herself had a political existence. I believe, Sir, it is not now seriously denied that the Indians are men, endowed with kindred faculties and powers with ourselves ; that they have a place in human sympathy, and are justly entitled to a share in the common bounties of a benignant Providence. And, with this conceded, I ask in what code of the law of nations, or by what process of abstract deduction, their rights have been ex tinguished. Where is the decree or ordinance, that has stripped of their rights these early and first lords of the soil ? Sir, no record of any such decree can be found. Aud I might triumphantly rest the hopes of these feeble fragments of once great nations upon this impregnable foundation. However mere human policy, or the law of power, or the tyrant's plea of expediency, may have found it convenient at any time to transgress the unchangeable principles of eternal justice, no argument can shake the politi cal maxim — that where the Indian always has been, he enjoys an absolute right still to be, in the free exercise of his own modes of thought, government and conduct. Mr. President : In the light of natural law, can a reason for a distinction exist from the mode of enjoying that which is my own ? If I use land for hunting, may another take it because he needs it for agriculture ? I am aware that some writers have, by a system of artificial reasoning, endeavored to justify, or rather excuse, the encroachments made upon Indian terri tory; and they denominate these abstractions the law of na tions, and, in this ready way, the question is despatched. Sir, as we trace the sources of this law, we find its authority to de pend either upon the conventions or common consent of nations. And when, permit me to inquire, were the Indian tribes ever consulted on the establishment of such a law ? Whoever repre sented them or their interests in any congress of nations, to confer upon the public rules of intercourse, and the proper foundations of dominion and property? The plain matter of fact is, that all these partial doctrines have resulted from the selfish plans and pursuits of more enlightened nations ; and it is not matter for any great wonder, that they should so largely partake of a mercenary and encroaching spirit in regard to the claims of the Indians. It is however admitted, Sir, that when the increase of popu lation and the wants of mankind, demand the cultivation ofthe earth, a duty rests upon the proprietors of large and unculti vated regions, to apply them to these useful purposes. But such appropriations are to be obtained by fair contract, and for reasonable compensation. It is, in such a case, the duty ofthe •proprietor to sell — we may properly address his reason to in duce him; but we cannot rightfully compel the cession of his lands, or take them by violence, if his consent be withheld. MR. FRELINGHUYSEN S SPEECH. 7 It is with great satisfaction, that I am enabled, upon the best authority, to affirm, that this duty has been largely and gene rously met and fulfilled on the part ofthe aboriginal proprietors of this continent. Several years ago, official reports to Con gress stated the amount of Indian grants to the United States to exceed 214 millions of acres. Yes, Sir, we have acquired, and now own, more land, as the fruits of their bounty, than we shall dispose of, at the present rate, to actual settlers in two hundred years. For, very recently, it has been ascertained on this floor, that our public sales average not more than about one million of acres annually. It greatly aggravates the wrong that is now meditated against these tribes, if we merely look at the rich and ample districts of their territories that either force or persuasion has incorporated into our public domains. As the tide of our population has rolled on, we have added pur chase to purchase. The confiding Indian listened to our pro fessions of friendship. We called him brother, and he believed us. Millions after millions he has yielded to our importunity, until we have acquired more than can be cultivated in centu ries — and yet we crave more. We have crowded the tribes upon a few miserable acres on our southern frontier — it is all that is left to them of then- once boundless forests — and still, like the horseleech, our insatiate cupidity cries, Give, Give. Before I proceed to deduce collateral confirmations of this original title, from all our political intercourse and conventions with the Indian tribes, I beg leave to pause a moment, and view the case, as it lies beyond the treaties made with them ; and aside also from all conflicting claims between the confederation and the colonies, and the Congress of the States. Our ancestors found these people, far removed from the com motions of Europe, exercising all the rights,'and enjoying the privileges, of free and independent sovereigns of this new world. They were not a wild and lawless horde of banditti ; but lived under the restraints of government, patriarchal in its character, and energetic in its influence. They had chiefs, head men, and councils. The white men approached them as friends, They extended the olive branch, and, being then a feeble colony, and at the mercy of the native tenants of the soil, by presents and professions, propitiated their good will. The Indian yielded a slow, but substantial confidence ; granted to the colonies an abiding place ; and suffered them to grow up to man's estate beside him. He never raised the claim of elder title. As the white man's wants increased, he opened the hand of his bounty wider and wider. By and by, conditions are changed. His people melt away ; his lands are constantly coveted ; millions after millions are ceded. The Indian bears it all meekly ; he complains, indeed, as well he may ; but suffers on ; and now he finds that this neighbor, whom his kindness had nourished, has spread an adverse title over the last remains of his patrimony, barely adequate to his wants, and turns upon him, and says : "Away! we cannot endure you so near us. These forests and rivers, these groves of your fathers, these firesides and 8 MR. frehNghuysen's speech. hunting grounds^ are ours by the right of power, and the lorce of numbers," Sir, let every treaty be blotted from our records, and in the judgment of natural and unchangeable truth and justice, I ask, Who is the injured, and who is the aggressor ? Let conscience answer, and I fear not the result. Let those who please, de nounce the pubhc feeling on this subject, as the morbid excite ment of a false humanity ; but I return with the inquiry, whether I have not presented the case truly, with no feature of it. over charged or distorted. And, in view of it, who can help feel ing ? Do the obligations of justice change with the color of the skin? Is it one of the prerogatives of the white man, that he may disregard the dictates of moral principle, when an Indian shall be concerned ? No, Mr. President. In that severe and Impartial scrutiny, which futurity will cast over this sub ject, the righteous awai'd will be, that those very causes which are now pleaded for the relaxation of the rules of equity, urg ed upon us not only a rigid execution of the highest justice, to the very letter, but claimed at our hands a generous and mag nanimous policy. Standing here then, on this unshaken basis, how is it possible that even a shadow of claim to soil or jurisdiction can be derived, by forming a collateral issue between the State of Georgia and the general government ? Her complaint is made against the United States, for encroachments on her sovereignty. Sir, the Cherokees are no parties to this issue ; they have no concern in this controversy. They hold by better title than either Georgia or the Union. They have nothing to do with State sovereignty, or United States sovereignty. They are above and beyond both. True, Sir, they have* made treaties with both, but not to acquire title or jurisdiction ; these they had before — ages before the evil horn-, when their white brothers fled to them for an asylum. They treated to secure protection and guaranty for subsisting powers and privileges ; and so far as those conventions raise obligations, they are willing to meet, and al ways have met, and faithfully performed them ; and now expect from a great people the like fidelity to plighted covenants. I have thus endeavored to bring this question up to the con trol of first principles. I forget all that we have promised, and all that Georgia has repeatedly conceded, and bv her conduct confirmed. Sir, in this abstract presentation ofthe case, strip ped of all collateral circumstances, (and these only the more firmly establish the Indian claims ;)— if the contending parties were to exchange positions ; place the white man where the « Indian stands ; load him with all these wrongs, — and what path '"'¦ would his outraged feelings strike out for his career ? Twenty shillings tax, I think it was, imposed upon the immortal Hamp den, roused into activity the slumbering fires of liberty in the old world. Thence she dates a glorious epoch, whose healthful influence still cherishes the spirit of freedom. A few pence of duty on tea, that invaded no fireside, excited no personal fears disturbed no immediate interest whatever, awakened in tile' MR. FRELINGHUYSEN' S SPEECH. 9 American colonies a spirit of firm resistance ; and how was the tea tax met, Sir ? Just as it should be. There was lurking, be neath this trifling imposition of duty, a covert assumption of au thority, that led directly to oppressive exactions. " No taxation without representation," became our motto. We would neither pay the tax, nor drink the tea. Our fathers buckled on their armor, and, from the water's edge, repelled the encroachments of a misguided cabinet. We successfully and triumphantly contended for the very rights and privileges, that our Indian neighbors now implore us to protect and preserve to them. Sir, this thought invests the subject under debate with most singular and momentous interest. We, whom God has exalted to the very summit of prosperity — whose brief career forms the brightest page in history ; the wonder and praise of the world ; Freedom's hope, and her consolation: — We about to turn trai tors to our principles and our fame — about to become the op pressors of the feeble, and to cast away our birth-right ! Mr. President, I hope for better things. It is a subject full of grateful satisfaction, that, in our public intercourse with the Indians, ever since the first colonies of white men found an abode on these western shores, we have distinctly recognised their title ; treated with them as the owners ; and, in all our acquisitions of territory, applied our selves to these ancient proprietors, by purchase and cession alone, to obtain the right of soil. Sir, I challenge the record of any other or different pretension. When or where did the assembly or convention meet, which proclaimed, or even sug gested to these tribes, that the right of discovery contained a superior efficacy to all prior titles ? And our recognition was not confined to the soil merely. We regarded them as nations — far behind us, indeed, in civilization ; but still we respected their forms of government — we conform ed our conduct to their notions of civil polity. We were aware of the potency of any edict that sprang from the deliberations of the council fire ; and when we desired lands, or peace, or alliances, to this source of power and energy, to this great lever of Indian government, we addressed our proposals. To this alone did we look, and from this alone did we expect aid or relief. I now proceed, very briefly, to trace our public history in these important relations. As early as 1763, a proclamation was issued by the king of Great Britain to his American col onies and dependencies, which, in clear and decided terms, and- with an honorable regard for Indian privileges, declared the opinions ofthe crown and the duties of its subjects. The pre amble to that part of this document which concerns Indian af fairs, is couched in terms that cannot be misunderstood. I give a literal extract : " And "whereas it is just and reasonable, and essential to our in terest and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under 10 MR. FRELINGHUYSEN'S SPEECH. our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories, as, not having been ceded to or purchased by lis, axe reserved to them, or any of them, as their hunting grounds ." Therefore the governors of colonies are prohibited, upon any pretence whatever, from granting any warrants of survey, or passing any patents for lands, " upon any lands whatever, which, not having been ceded or purchased, were reserved to the said Indians ;" and, by another injunction in the same proc lamation, " all persons whatever, who have either wilfully or inadvertently seated themselves upon any lands, which, not having beenneded to or purchased by the crown, were reserv ed to the Indians as aforesaid, are strictly enjoined and requir ed to remove themselves from such settlements." This royal ordinance is an unqualified admission of every principle that is now urged in favor of the hberties and rights of these tribes. It refers to them as nations, that had put them selves under the protection ofthe crown; and, adverting to the fact that their lands had not been ceded or purchased, it freely- and justly runs out the inevitable conclusion, that they are re served to these nations as their property ; and forbids all sur veys and patents, and warns off all intruders and trespassers. Sir, this contains the epitome of Indian history and title. No king, colony, state or territory, ever made, or attempted to make, a grant or title to the Indians, but universally and per petually derived their titles from them. This one fact, that stands forth broadly on the page of Indian history — which neither kings nor colonies — neither lords proprietors, nor diplo matic agents, have, on any single occasion, disputed — is alone sufficient to demolish the whole system of political pretensions, conjured up in modern times, to drive the poor Indian from the last refuge of his hopes. The next important era, in the order of time, relates to the dispute of the colonies with Great Britain. The attention of the Congress, on the eve of that conflict, was called to the situation of these tribes, and their dispositions on that interest ing subject. Then, Sir, we approached them as independent nations, with the acknowledged power to form alliances with or against us. For, in June, 1775, our Congress resolved, "That the Committee for Indian Affairs do prepare proper talks to the several tribes of Indians, for engaging the continu ance of their friendship to us, and neutrality in our present un happy dispute with Great Britain." Again, on the 12th July 1775, a report of the Committee was agreed to, with the fol lowing clause at its head : " That the securing and preserving the friendship of the Indian nations, appears to be a subject of the utmost moment to these colonies." And, Sir, the journals of that eventful period of our history are full of resolutions all of which indicate the same opinions of those illustrious states men, respecting the unquestioned sovereignty of the Indians I forbear further details. After the revolution, and in ths MR. FRELINGHUYSEN'S SPEECH. 11 eighth year of our Independence, in the month of September, A. D. 1783, the Congress again took up the subject of Indian affairs, and resolved to hold a convention with the Indians re siding in the middle and northern States, who had taken up arms against us, for the purposes of " receiving them into the favor and protection of the United States, and of establishing boundary lines of property, for separating and dividing the set tlements of the citizens from the Indian villages and hunting grounds, and thereby extinguishing, as far as possible, all oc casion for future animosities, disquiet and contention." If, at any point of our existence as a people, a disposition to encroach upon the Indians, and to break down their separate and sovereign character, could have been looked for, or at all excused, this was the time ; when we had just come out of a long, severe and bloody conflict, often prosecuted by our foes with unnatural barbarity, and to aggravate which, these very tribes had employed their savage and ferocious customs. And yet, Sir, what do we find ? Instead of the claims of conquest, the rights of war, now so convenient to set up, the American Congress, greatly just, accord to these very Indians the char acter of foreign nations, and invite them to take shelter under our favor and protection ; not only this, but adopt measures ' to ascertain and establish boundary lines of property between our citizens and their villages and hunting grounds.' Under the confederation of the old thirteen States, and shortly before the adoption of the Constitution, on the 28th of Noveniber, 1785, a treaty was made with the Cherokee nation at Hopewell. This treaty, according to its title, was concluded between " Commissioners Plenipotentiary of the United States of America, of the one part, and the Headmen and Warriors of all the Cherokees, ofthe other." It gives " peace to all the Cherokees," and receives them into the favor and protection of the United States. And, by the first article, the Cherokees "agree to restore all the prisoners, citizens of the United Stales, or subjects of their allies, to their entire liberty." Here, again, we discover the same magnanimous policy of renouncing any pretended rights of a conqueror in our negotiations with the allies of our enemy. We invite them to peace ; we engage to become their protectors ; and, in the stipulation for the libera tion of prisoners, we trace again the broad line of distinction between citizens ofthe United States and the Cherokee people. Who, 'after this, Sir, can retain a single doubt as to the un questioned political sovereignty of these tribes. It is very true, that they were not absolutely independent. As they had be come comparatively feeble, and as they were, in the mass, an uncivilized race, they chose to depend upon us for protection ; but this did not destroy or affect their sovereignty. The rule of pubhc law is clearly stated by Vattel : — " One community may be bound to another by a very unequal alliance, and still be a sovereign State. Though a weak State, in order to pro vide for its safety, should place itself under the protection of a more powerful one, yet, if it reserves to itself the right of govern- 12 MR. FRELINGHUYSEN'S SPEECH. ingr its own body, it ought to be considered as an independent State." If the right of self-government is retained, the State preserves its political existence ; and, permit me to ask, when did the southern Indians relinquish this right ? Sir, they have always exercised it; and were never disturbed in the enjoy ment of it, until the late legislation of Georgia and the States of Alabama and Mississippi. The treaty next proceeds to establish territorial domains, and to forbid all intrusions upon the Cherokee country, by any of our citizens, on the pains of outlawry. It provides, that if any citizen of the United States shall remain on the lands of the Indians for six months " after the ratification of the treaty, such person shall forfeit the protection of the United States, and the Indians may punish him or not, as they please." What stron ger attribute of sovereignty could have been conceded to this tribe, than to have accorded to them the power of punishing our citizens according to their own laws and modes ? and, Sir, what more satisfactory proof can be furnished to the Senate,. of the sincere and inflexible purpose of our government to maintain the rights of the Indian nations, than the annexation of such sanctions as the forfeiture of national protection, and the infliction upon intruders of any punishment within the range of savage discretion. It is to be recollected, that this treaty was made at a time when all admit the Cherokees to have been, with very rare exceptions, in the rudest state of pagan darkness. Mr. President, it is really a subject of wonder, that, after these repeated and solemn recognitions of right of soil, territory and jurisdiction, in these aboriginal nations, it should be grave ly asserted, that they are mere occupants at our will ; and, what is absolutely marvellous, that they are a part of the Georgia population — a district of her territory, and amenable to her laws, whenever she chooses to extend them ! After the treaty of Hopewell was made and ratified, and in the year 1787, the States of North Carolina and Georgia trans mitted their protests to Congress, in which they complained of the course of transactions adopted with respect to the Indians, and asserted a right in the States to treat with these tribes, and to obtain grants of their lands. The Congress referred the whole matter to a committee of five, who made an elaborate report, that disclosed the principles upon which the intercourse of the confederacy with these people was founded. It is ma terial to a correct understanding of this branch of the subject, that we should advert to a limitation, subsisting at that time, upon the powers of the old Congress. The limitation is con tained in the following clause of the articles of confederation : — " Congress shall have the sole and exclusive right and power of regulating the trade and managing all affairs with the In dians, not members of any of the States ; provided that the legislative right of any State, within its own limits, be not in fringed or violated." MR. FRELINGHUYSEN'S SPEECH. 13 Upon this clause and its proviso, the committee proceed to report : " In framing this clause, the parties to the federal compact must have had some definite objects in view. The objects that come into view principally in forming treaties, or managing affairs with the Indians, had been long understood, and pretty well ascertained, in this country. The committee conceive that it has been long the opinion of the country, sup ported by justice and humanity, that the Indians have just claims to all lands occupied by, and not fairly purchased from, them." " The laws of the State can have no effect upon a tribe of Indians, or their lands within a State, so long as that tribe is independent, and not a member of the State. It cannot be supposed that the State has the powers mentioned," (those of making war and peace, purchasing lands from them, and fix ing boundaries,) "without absurdity in theory and practice. For the Indian tribes are justly considered the common friends or enemies of the United States, and no particular State can have an exclusive interest in the management of affairs with any of the tribes, except in uncommon cases." The Senate perceive the estimate that was formed of these State pretensions. The committee argue with conclusive energy, that to yield such powers to particular States, would not only be absurcf in theory, but would in fact destroy the whole system of Indian relations — that this divided, alternate cognizance of the matter, by the States and by the Congress, could never be enforced, and would result in discordant and fruitless regulations. The grounds assumed in this able report are unanswerable. The committee regarded the subject as national, concerning the whole United States, of whom the Indians were the common friends or foes — that such a concern was too general and public in all its bearings, to be subjected to the legislation and management of any particular State. The Congress, therefore, assumed the entire jurisdiction and control of it. And after this report, we hear no more of State protests. They yielded their claims to a much safer depositary of this interesting trust. Sir, I take leave to say, that the sound, sensible principles of this report have lost nothing of their authority by time, and that every year of our history has confirmed their wisdom ; as well as illustrated the justice and humanity of the Congress of '87. The Convention that formed and adopted the Constitution, in their deliberations upon the security of Indian rights, wisely determined to place our relations with the tribes under the absolute superintendence of the general government, which they were about to establish. The proviso under the old com pact, that had in ambiguous terms reserved to particular States an undefined management of Indian Affairs, was altogether discarded ; and the simple, unqualified control of this impor tant branch of public policy, was delegated to Congress, in the following clause of the Constitution : " Congress shall haye power to regulate commerce with foreign nations, among the several States, and with the Indian tribes" An incidental argu - 2 14 MR. FRELINGHUYSEN'S SPEECH. ment, in favor of my views, cannot fail to strike the mind, on the face of this clause. The plea that is now, for the first time, urged against the Indians, rests upon the allegation, that the tribes are not distinct nations — that they compose a portion of the people of the States ; and yet, in this great national char ter, the work of as much collected wisdom, virtue and patriot ism, as ever adorned the annals, or shed light upon the govern ment of any age or country, the Indian tribes are associated with foreign nations and the several States, as one of the three distinct departments of the human family, with which the, general government was to regulate commerce. Strange company, truly, in which to find those it now seems convenient to denominate a few poor, miserable savages, that were always the peculiar subjects of State sovereignty, mere tenants at will of the soil, and with whom it is " idle" to speak of negotiating treaties ! There was another subject, closely connected with this, that engaged the anxious deliberations of the great statesmen who composed the memorable Convention ; — and this was the treaty power. To found this well, was a concern worthy of their first and best thoughts. The good faith of a nation was not to be pledged but on grave and great occasions : for when plight ed, it brought the nation itself under obligations too sacred to be argued away by the suggestions of policy or convenience, profit or loss. They, therefore, subjected the exercise of this high function to two great departments of the government — the President and Senate of the United States. They required formalities to attend the exercise of the power, that were in tended and calculated to guard the trust from rash and incon siderate administration. But, these requisites complied with, and a treaty made and concluded, no retreat from its claims was provided or desired by the Convention. No, Sir. To shut up every avenue of escape — to compel us to be faithful, " Trea ties" are declared, by the charter of our government, "to be the supreme law of the land, any thing in the constitution or laics of any State to the 'contrary notwithstanding." How could the inviolate character of a treaty be more effectually preserved ? Let convulsions agitate the commonwealth — let the strifes of party shake the pillars of the political edifice — around the na tion's faith barriers are raised, that may smile at the storm. And, Sir, if these guards fail; if these defences can be assailed , and broken down ; then may we indeed despair. Truth and honor have no citadel on earth — their sanctions are despised and forgotten ; and the law of the strongest prevails. Mr. President, I fear that I shall oppress the patience of the Senate by these details— but the subject is deeply interesting, and each successive year of our political history brings me fresh and strong proofs of the sacred estimation, in which In dian rights were always held. Sir, in the very next year that followed the formation of the Constitution, on the first of Sep tember, 1788, the encroachments ofthe whites upon the Indian territory, as guarantied to them by the treaty of Hopewell. MR. FRELINGHUYSEN'S SPEECH. 15 made with the Cherokees, as I have already stated, in 1785, caused a proclamation to be issued by Congress, of the date first mentioned, affirming in all things the treaty of Hopewell, and distinctly announcing, (I give the literal clause,) "the firm determination of Congress to protect the said Cherokees in their rights, according to the true intent and meaning of the said treaty." And they further resolve, " that the Secretary of War be directed to have a sufficient number of the troops in the service of the United States, in readiness to march from the Ohio, to the protection ofthe Cherokees, whenever Congress shall direct the same." The next important event, in connexion with the Cherokees, is the treaty of Holston, made with them on the 2d July, 1791. This was the first treaty that was negotiated with the Chero kees after the adoption of the Constitution. And it is only ne cessary to consider the import of its preamble to become satis fied of the constancy of our policy, in adhering to the first prin ciples of our Indian negotiations. Sir, let it be remembered that this was a crisis, when the true spirit of the Constitution would be best understood. Most of those who framed it came into the councils of the country in 1789. Let it be well pon dered, that this treaty of Holston was the public compact, in which general Washington, as a preparative solemnity, asked the advice of the Senate — and concerning which he inquired of that venerable body, whether, in the treaty to be made, the United States should solemnly guaranty the new boundary, to be ascertained and fixed between them and the Cherokees. The preamble to this treaty I will now recite : "The parties being desirous of establishing permanent peace and friendship between the United States and the said Cherokee nation and the citizens and members thereof, and to remove the causes of war, by ascertaining their limits, and making other necessary, just and friendly arrangements : the President of the United States, by William Blount, Governor of the territory of the United States of America south of the river Ohio, and Superintendent of Indian Af fairs for the Southern District, who is vested with full powers for these purposes, by and with tlie advice and consent ofthe Senate ofthe United States ; and the Cherokee nation, by the undersigned Chiefs and Warriors representing the said nation, have agreed to ; the fol lowing articles," &c. The first article stipulates, that there shall be perpetual peace and friendship between the parties. A subsequent article pro vides, that the boundary between the United States and the Cher okees "shall be ascertained and marked plainly, by three per sons appointed on the part ofthe United States, and three Cher okees on the part of their nation." In pursuance of the advice of the Senate, by the 7th article of this treaty, " The United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded." And after several material clauses, the concluding article suspends the effect and obligation of the treaty upon its ratifl- 16 MR. frelinghuysen's speech. cation " by the President of the United States, with the advice and consent ofthe Senate ofthe United States." Now, Sir, it is a most striking part of this history, that every possible incident of form, deliberation, advisement and power, attended this compact. The Senate was consulted before our plenipotentiary was commissioned — full powers were then given to our commissioner — the articles were agreed upon— the treaty referred to the Executive and Senate for their ratifica tion, and, with all its provisions, by them solemnly confirmed. Mr. President, it requires a fulness of self-respect and self- confidence, the lot of a rare few, after time has added its sanc tions to this high pledge of national honor, to attempt to con vict the illustrious men of that Senate of gross ignorance of constitutional power ; to charge against them that they strange ly mistook the charter under which they acted ; and violated almost the proprieties of language, as some gentlemen contend, by dignifying with the name and formalities of a treaty " mere bargains to get Indian lands." Who so well understood the nature and extent ofthe powers granted in the Constitution, as the statesmen who aided by their personal counsels to estab lish it ? Every administration of this government- has, with like so lemnities and stipulations, held treaties with the Cherokees; treaties, too, by almost all of which we obtained further acces sions of territory. Yes, Sir, whenever we approached them in the language of friendship and kindness, we touched the chord that won their confidence : and now, when they have nothing left, with which to satisfy our cravings, we propose to annul every treaty — to gainsay our word — and, by violence and per fidy, drive the Indian from his home. In a subsequent treaty between the United States and the Cherokee nation, concluded on the 8th July, A.JD. 1817, express reference is made to past negotiations between the parties on the subject of removal to the west of the Mississippi ; the same question that now agi tates the country, and engages our deliberations. And this convention is deserving of particular notice, inasmuch as we shall learn from it, not only what sentiments were then enter tained by our government towards the Cherokees, but also in what light the different dispositions of the Indians to emigrate to the west, and to remain on their ancient patrimony, were considered. This treaty recites, that application had been made to the United States, at a previous period, by a deputa tion of the Cherokees, [on the 9th January, 1809J] by which they apprized the government ofthe wish of apart of their na tion to remove west of the Mississippi, and of the residue to abide in their old habitations ; that the President of the United States, after maturely considering the subject, answered the petition as follows : " The United States, my children, are the friends of both parties, and, as far as can be reasonably asked, they are willing to satisfy the wishes of both. Those who remain may be assured of our patronage, our aid, and our MR. FRELINGHUYSEn's SPEECH. 17 good neighborhood." " To those who remove, every aid shall be administered, and when established at their new settle ments, we shall still consider them as our children, and always hold them firmly by the hand." The convention then establishes new boundaries, and pledges our faith to respect and defend the Indian territories. Some matters, Mr. President, by uni versal consent, are taken as granted, without any explicit re cognition. Under the influence of this rule of common fair ness, how can we ever dispute the sovereign right ofthe Cher okees to remain east ofthe Mississippi, when it was in relation to that very location, that we promised our patronage, aid and good neighborhood? Sir, is this high-handed encroachment of Georgia to be the commentary upon the national pledge here given, and the obvious import of these terms ? How were these people to remain, if not as they then existed, and as we then acknowledged them to be, u distinct and separate com munity, governed by their own peculiar laws and customs ? Further, Sir, it appears from this treaty, that the Indians who preferred to remain east of the river, expressed " to the Presi dent an anxious desire to engage in the pursuits of agriculture and civilized life in the country they then occupied," and we engaged to encourage those laudable purposes. Indeed, such pursuits had been recommended to the tribes, and patronized by the United States, for many years before this convention. Mr. Jefferson, in his message to Congress, as early as 1805, and when on the subject of our Indian relations, with his usual en larged views of public policy, observes ; '• The aboriginal in habitants of these countries, I have regarded with the com miseration their history inspires. Endowed with the faculties and the rights of men, breathing an ardent love of liberty and independence, and occupying a country which left them no desire but to be undisturbed, the stream of overflowing population from other regions directed itself on these shores. Without power to divert, or habits to contend against it, they have been over whelmed by the current or driven before it. Now reduced within limits too narrow for the hunter state, humanity enjoins us to teach them agriculture and the domestic arts ; to encourage them to that industry, which alone can enable them to maintain their place in existence ; and to prepare them in time for that society, which, to bodily comforts, adds the improvement of the mind and morals. We have, therefore, liberally furnished them with the implements of husbandry and household use ; we have placed among .them ihstructers in the arts of first necessity ; and they are covered with the cegis ofthe law against aggressors from among ourselves." These, Sir, are sentiments worthy of an illustrious statesman. None can fail to perceive the spirit of justice and humanity which Mr. Jefferson cherished towards our Indian allies. He was, through his whole life, the firm, unshrinking advocate of their rights, a patron of all their plans for moral improvement and elevation. Mr. President, it will not be necessary to pursue the details of our treaty negotiations further. I beg leave to state, before 2* 18 MR. FRELINGHUYSEN'S SPEECH. I leave them, however, that with all the southwestern tribes of Indians we have similar treaties. Not only the Cherokees, but the Creeks, Choctaws and Chickasaws, in the neighborhood of Georgia, Tennessee, Alabama and Mississippi, hold our faith, repeatedly pledged to them, that we would respect then- bound aries, repel aggressions, and protect and nourish them as our neighbors and friends : and to all these pubhc and sacred com pacts, Georgia was a constant party. They were required, by an express article, to be submitted to the Senate of the United States for their advice and consent. They were so submitted ; and Georgia, by her able representatives in the Senate, united in the ratification of these same treaties, without, in any single instance, raising an exception, or interposing a constitutional difficulty or scruple. Other branches of our political history shed abundant light upon this momentous question. When the Congress of the United States directed its care to the future settlement and government ofthe vast and noble domains to the northwest of the river Ohio, ceded by the State of Virginia, among other matters, which were deemed to be vitally connected with the welfare of that region, was the condition ofthe Indian nations. The third article of the celebrated ordinance for the govern ment of the Northwestern Territory, is in the following words : " Religion, morality and knowledge, being necessary to good govern ment and the happiness of mankind, schools and the means of education shall forever be encouraged. 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 jus tice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them." B v Sir, the more minutely we look into the proceedings of the Congress of 1787, the more deeply shall we venerate the wisdom and virtue, the largeness of views, and the political forecast, that HesBed and illustrated the councils of our country. This' soli tary article would forever stand out, and alone sustain their rep utation. We shall presently learn what concern was man ifested by the State of Georgia, to spread the whole influence and control of this article over the cession, which she made to the Union, of the territory now composing the States of Al abama and Mississippi. How can Georgia, after all this, desire or attempt and how can we quietly permit her," to invade and disturb the property rights and liberty of the Indians?" And this, not only not "in just and lawful wars authorized by Congress," but in a time of profound peace, while the Cherokee lives in tranquil prosperity by her side ? I press the inquiry— How can we tamely suffer these States to make laws, not only not "founded in justice and humanity," " for preventing wrongs being done to the Indians," but for the avowed purpose of inflicting the ero^ ¦ MR. frelinghuysen's speech. 19 and wanton injustice of breaking up their governments — of ab rogating their long-cherished customs, and of annihilating their existence as a distinct people. The Congress of the United States, in 1790, in an act to regu late trade and intercourse with the Indian tribes ; and again, by a similar act in 1802, still in force, distinctly recognised every material stipulation contained in the numerous treaties with the Indians. In fact, Sir, these acts of legislation were passed expressly to fulfil our treaty stipulations. These statutes refer to "the boundaries, as established by trea ties between the United States and the various Indian tribes ;" they next direct such " lines to be clearly ascertained, and dis tinctly marked" — prohibit any citizen of the United States from crossing these lines, to hunt or settle — and authorize the em ployment of the public and military force of the government to prevent intrusion, and to expel trespassers upon Indian lands. The twelfth section of this important law most wisely guards the great object of Indian title from all pubhc and private im position, by enacting, "that no purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian or nation, or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by treaty or convention, entered into pursuant to the Constitution." I trust, Sir, that this brief exposition of our policy, in relation to Indian affairs, establishes, beyond all controversy, the obli gation of the United States to protect these tribes in the exer cise and enjoyment of their civil and political rights. Sir, the question has ceased to be — What are our duties" An inquiry much more embarrassing is forced upon us: How sliall we most plausibly, and with the least possible violence, break our faith ? Sir, we repel the inquiry — we reject such an issue — and point the guardians of public honor to the broad, plain path of faithful performance, to which they are equally urged by duty and by interest. Here I might properly rest — as the United States are the only party that the Indians are bound to regard. But if further proofs be wanting to convince us of the unwarrantable pre tensions of Georgia, in her late violent legislation, they are at hand, cogent, clear and overwhelming. This State, Sir, was not only a party to all these conventions with the general gov ernment ; she made as solemn treaties with the Creeks and Cherokees for herself, both when a colony, and. after she be came a State. These form a part of her title— and are bound up with her pubhc laws. On the first of June, A. D. 1773, she negotiated a treaty with these Indian nations, by the joint ao-ency of the governor of the colony and the superintendent of Indian affairs ; in which treaty, boundaries are established and cessions of land agreed upon. Again, on the 31st May, A D. 1783, after her independence as a State, another treaty was concluded between the governor of Georgia, and five of her most distinguished citizens, duly appointed by the legisla- 20 mr. frelinghuysen's speech. ture ofthe State, ofthe one part, and the chiefs, head men and warriors of the hordes or tribes of the Cherokee Indians, in behalf of the said nation, on the other part." And in the first article of this convention, the distinct, independent existence of the Cherokees is acknowledged ; for it provides, |' that all differences between the said parties, heretofore subsisting, shall cease and be forgotten." Is it possible to contend, in the face of this document, that the Cherokees are under the jurisdiction of Georgia, when that State finds it necessary to negotiate for peace with them by all the forms of a regular treaty ? But more than this— by the last article of this treaty, the Cherokees agree to cede, grant, release and quitclaim to Georgia, all the lands up to a certain boundary line defined in the said document: And until since the extraordinary usurpation of this State, in extending her laws over this nation, these treaty lines were re spected, and never disputed. In the year 1777, the States of Georgia and South Carolina met the Creek and Cherokee nations at Dewitt's Corner, for the avowed purpose of making a treaty of peace with them. Sir, if the greatest potentate of Europe had been a party, the preliminaries could not have been more formal or solemn. First are produced what are denominated " the Georgia full powers" delegated to her commissioners, to meet "the Indian Congress" to be held at Dewitt's Corner. Next appear " the South Carolina full powers," for the like purpose — and lastly, the Creek and Cherokee "full powers." These powers are opened and exchanged at this Congress, and a treat}' is agreed upon by the plenipotentiaries, establishing peace, and future boundaries between their respective territories. In many of the treaties made by the United States with the Cherokees and Creeks, large tracts of land were relinquished to us, which, by our compact with the State of Georgia, we received for her use. She never questioned, at those times, our right to treat for those lands, nor the right of the Indians to grant them ; but gladly availed herself of such rich acces sions to her domains, and proceeded very promptly to distribute them amongst her citizens. Now, it is a fundamental maxim in all codes of law, which acknowledge the obligations of equity and good conscience, that if a party is silent when these old- fasliioned rules of upright dealing require him to speak, he shall forever thereafter hold his peace. The application of this sound and wholesome rule will instantly strike the moral apprehen sions of every member ofthe Senate. I am indebted to the State of Georgia for a clear and very satisfactory exposition of the nature of Indian treaties, and the obligations that arise from them. It is an authority for posi tions, which I have had the honor to maintain, ofthe ress condition that its requisitions should be the fundamental aw ofthe new State. But, says the gentleman, Congress had no power to pass such a law. If so, the Act respecting the admis sion of Alabama was unconstitutional and void, and neither cre ated nor admitted any new State. The ingenious gentleman has reasoned so profoundly upon constitutional law, that he has argued himself and his colleague out of then- seats in this Senate ! — Now, Sir, against this I most seriously protest — they cannot be spared — we need the, aid of their talents and experience. How will the gentleman escape from the consequences which I have deduced ? Will he contend that the compact and the law were valid and not vaM at the same time ? That they conferred rights, but could not impose obligations upon his State ? Even if 'such an extraordinary position were assumed, how would it affect the present question ? If he can infuse any degree of vital ity into that which was dead before its birth, if he can make that compact efficacious as the consent of Georgia to Alabama's be coming a State, would it not also be effectual as her consent that the United States should exercise jurisdiction over the territory, so far as to make treaties with the Indian tribes ? If, then, the gentleman will admit that Georgia assented to any thing, by vir tue of that compact, she consented to the formation of these trea ties, and thus they were valid by her authority before Alabama was brought into being. _ As a dernier resort, the gentleman insists that the true construc tion ofthe language ofthe Ordinance gives ah the right over the Indians for which his State contends, because the latter clause requires that " laws"— " shall from time to time be made for pre venting wrongs being done to them, and for preserving peace and friendship with them ;" that is, laws restraining the whites, our own citizens, from encroaching upon the natives, and thereby en dangering the pubhc tranquillity. If Maine or New York should pass laws for "preventing wrongs being done to" the Canadians, « and for preserving peace and friendship with them"— would that give jurisdiction over the British provinces ? But let us read the whole clause, the true construction of which confers this unlimited power. "The utmost good faith shall always^ be observed toward the Indians ;" which means that we may violate all our engage- mr. sprague's speech. 53 ments at pleasure ! — " their lands and property shall never be taken from them without their consent ;" that is, both may be taken by violence agamst their .utmost resistance ! — "in their property, rights, and liberty, they shall never be invaded or dis turbed, unless in just and lawful wars authorized by Congress ;" there shall be laws for " preventing wrongs being done to them and for preserving peace and friendship with them ;" the true Construction of all which is — that a State may make war upon them at pleasure — deprive them of then- lands — and annihilate their nation ! To such arguments are gentlemen of great ability compelled to resort ! I dismiss this topic, and proceed to another. The rights of the natives, both natural and conventional, have been strenuously denied. What right, it is asked, have the In dians to the lands they occupy ? I ask, hi reply, What right have the English or die French, the Spaniards or the Russians, to the countries they inhabit ? But it is insisted that the original claim of the natives has been devested by the superior right of discovery. I have already shown, that this gives no ground of claim as against the discovered ; that it is a mutual understanding or con ventional arrangement entered into by the nations of Europe, amongst themselves, to define and regulate their respective claims as discoverers, in order to prevent interference and contests with each other ; all agreeing, that the sovereign who should first find a new country should be left without interference from them, to deal with it and its inhabitants, according to bis ability and his conscience. But we are told, that grants from the king are the highest title, and have always been relied upon as such. True — as against other grantees from the crown, or against the government itself; but not as to the natives. If such a title gives any just claim as r against them, then they are bound to yield to it ; for to eveiy right appertains a corresponding obligation. Were the aborigines bound to yield to such pretensions ? Sup pose that, more than two centuries ago, when, in unbroken strength, they held resistless sway over this whole western world, a royal patentee, with his handful of followers, just landed on these shores, should have found himself in the midst of a power ful Indian nation. The council fire is hghted up, and sachems and warriors are assembled around it. He presents himself, and says to them — " This country is no longer yours. You must leave the forests' where you hunt, and the valleys where you live. All the land which you can see from the highest mountain is mine. It has been given me by the king of the. white men across the waters. Here is his grant — how can you resist so fair a title ?" If they deigned any other reply than the war-whoop, their chief might say — "The Great Spirit, who causeth the trees to rise from the ground toward the heavens, and maketh the rivers to descend from the mountains to the valleys — who created the earth itself, and made both the red man and the white man to dwell thereon—^ 5 * 54 MR. SPRAGUe's SPEECH. gave this land to us and to our ancestors. You say you have a grant from your king beyond the waters — we have a grant from the King of kings, who reigns in heaven— by this title our fathers • have held it for uncounted generations, and by this title their sons will defend it." It has been sn-emibusly argued, that the overflowing nations of Europe had a just claim to the occupancy of some portion of the vacant lands of'the aborigines for their own subsistence. The excessive population of China, and of Holland, have, at this day, the same ground of claim against the United States. May they, therefore, drive us even from our cities and villages, and take all our territory by force ? — We permit them to come and possess, if they submit to our laws, and pay us for the soil , The Indians have been more liberal, having ceded both soil and sovereignty to hundreds of millions of acres. The Cherokees have no more to spare : they need the residue for themselves. Shall they be permitted to retain it? To avoid, as far as possible, all questionable ground, I at pres ent contend only that the Indians have a right to exist as a com munity, and to possess some spot of earth upon which to sustain that existence. That spot is their native land. If they have no claim there, they have no right any where. Georgia asserts that the lands belong to her — she must, and she will have them — even by violence, if other means fail. This is a declaration of a right to drive the Cherokees from the face of the earth ; for if she is not bound to permit them to remain, no nation or people are bound to receive them. To that for wliich I now contend, the Indians possess not only a natural, but also a legal and conven-. tional right. These two grounds of claim have been blended and confounded. The rights which the United States have claimed with? respect to the territory of the aborigines, have been two-fold; pre-emptive and reversionary — a right to purchase, to the exclusion of all others, and to succeed the natives, should they voluntarily leave the country or become extinct. It will at once be perceived, that this is a right to exclude others from interference, but not to coerce the Indians. It leaves to them the perpetual undisturbed occupancy. They cannot in deed transfer their country to others— but this does not impair their title, although it may diminish its value in the market. It still belongs to them and their heirs forever. If a State should, Dy law, prohibit its citizens from malting sale of their lands with out the assent of- the executive, would it destroy every man's title ? Nay, the laws do now prevent conveyances to aliens. The right claimed is merely to exclude all others from pur chasing of the aborigines. It will be divested of much of its ap pearance of harshness toward them by recurring to its origin. It was the primitive agreement or mutual understanding between exploring nations, that whichever should first find a new country should alone possess the privilege of dealing with the natives'; and upon this ground the discoverer excluded others from be coming purchasers. He had the right of pre-emption. This MR. sprague's speech, 55 agreement trenched not upon the title of the aborigines; and as to its affecting the value of their lands, by preventing competition in the purchase, there would have been no purchaser but for the discovery. There is no mystery in the international law of discovery. So far as it relates to this subject, it is the same as if five or six per sons, being about to go in search of sugar lands in South America, should mutually engage that they, would not' interfere with each other in their purchases. Such agreement would do no wrong to the original owner. The reversionary claim, as it mSiy be denominated — although in strictness that cannot revert to another, which always belonged to the present possessor — is the necessary consequence of the ex clusion of others Train purchasing. It is merely a right of succes sion to lands ofthe Indians, when they shall have become extinct, or have voluntarily abandoned them by emigration ; as the prop erty of individuals sometimes escheats to the government for the want of heirs. The right of the aborigines to the perpetual and exclusive oc cupancy of all their lauds, has been always recognised and affirm ed by the United States. It was respected by Great Britain before the revolution ; as appeal's by the royal proclamation of 1763, in which all persons are commanded "forthwith to remove them selves" from lands, which, not having been ceded to or purchased by us, are still reserved to the said Indians ; and, after reciting that individuals had practised fraud upon the natives, forbids private persons from making purchases, to the end that the Indians may be convinced of our justice'; and provides, that if the said Indians should be inclined to dispose ofthe said lands, "the same shall be purchased only for us, in our name, at some public meeting or assembly ofthe said Indians, to be held for that purpose." That right was recognised by the Confederation ; as appears by the whole tenor of their proceedings ; particularly then- treaties, by which they purchased a part and guarantied the remainder ; by the report of a Committee in August, 1787, which declares that the Indians have just claims to all occupied by and not purchased of them — and the proclamation of Congress in September, 1788, which has been already referred to. That, under our present Constitution, the rights of the natives and the relation in which they stand to the United States are such as I have described, is clearly manifested — by the Speech of President Washington to the Senecas in 1790, from which I have already presented some extracts — and by the following explicit and deliberate letter of Mr. Jefferson, written to the Secretary of War in 1791— " I am of opinion, that government should firmly maintain this - ground : that the Indians have a right to the occupation of their lands, andependent ofthe States within whose chartered lines they happen to be ; that, until they cede them by treaty, or other transactions equivalent to a treaty, no act of a State can give a right to such lands ; that neither under the present Constitution, nor the ancient Confederation, had any State or persons a right to treat with the 56 mr. sprague's speech. Indians, without the consent of the general government; that that consent has never been given to any treaty for the cession ot the lands in question ; that the government is determined to exert aM Us energy for the patronage and protection of the rights of the Indians, and the preservation of peace between the United States and them; and that, if any settlements are made on lands not ceded by them, .withouf, the previous consent of the United States, the government will think . itself bound, not only to declare to the Indians that such settlements are without the authority or protection of the United States, but to remove them also by the public force." The same is also manifest by the intercourse law of 1790, for bidding all encroachments, by citizens of the United States, upon the " territory belonging to any teibe or nation of Indians — by many other statutes, particularly that of March, 1805— by all the treaties of purchase and cession— all the laws to carry them into effect and pay the consideration — and all the acts for enabling the ex ecutive to extinguish Indian titles." The gentleman from Georgia (Mr. Forsyth) has referred to the correspondence at Ghent to sustain his denial of rights to the In dian tribes. He relied upon the views of the American com missioners in repelling the claims of the British. As it is some times more satisfactory to read for ourselves, than to take the construction of others, permit, me, Sir, to present to you an ex tract from that correspondence. " Under this 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 upon the lands where they inhabit, or hunt, are secured to them by boundaries defined in amicable treaties between the United States and them selves ; and when these boundaries are varied, it is also by amicable" and voluntary treaties, by which they receive from the United States ample compensation for every right they have to the lands ceded. Such is the relation between them and the United States : that re lation is not now created for the first time, nor did it originate with the treaty of Grenville." And, subsequently, the treaty of Grenville was merely declara tory of the public law- — on principles previously and universally recognised. To this, Sir, was subscribed the names of all our com missioners at Ghent. The gentleman from Alabama, (Mr. M'Kinley,) to show that the natives had no title to the soil, cited the case of Johnson and Mcintosh, decided by the Supreme Court of the United States, and reported in the 8di of Wheaton. To see how precisely that case sustains my positions, let me read a few very short extracts from the opinion of the court, as delivered by Chief Justice Marshall. It declares that the right ofthe United States, or the several States, is subject to the Indian right of occupancy ; that the original inhabitants are the right ful occupants ofthe soil, "'with a legal as well as a just claim to retain possession of it, anil to use it according to their own disa-etion." And again, "it has never been contended that the Indian tide amounted to nothing. Their right of possession has never been questioned." MR. sprague's speech. 57 Georgia herself has recognised those established rights of the natives, and the relation they bear to the general government. By a law, passed in 1796, respecting the vacant lands within her chartered limits, she held the following language : " the terri tory therein mentioned is hereby declared to be the sole property ofthe State, subject onlyAo tlie right of treaty of die United States, to enable the State to purchase under its pre-emption right the In dian title to the same." — A most pregnant act of legislation. It expressly admits the Indian title — that the claim of the State is only to purchase under its pre-emption right — that even this she could not do, unless enabled by the United States — that the United States had the right of treaty with the Indians ; and that the claims of Georgia were subject to that right. In the compact of 1802, she stipulated, by reference to an Article ofthe Ordinance before mentioned, for the inviolability of the lands, property, rights and liberty of the Indians, upon the territory relinquished ; and recognised then just claim to lands, in that which was retained, by the Article which binds the United States at then own expense to extinguish the Indian title there to, as early as it could be done peaceably and upon reasonable terms. The titles of the Acts which I have read, and' several others, speak of the lands therein disposed of as " acquired," " obtained," from the " Creek and Cherokee nations," by the treaties held by the United States. Even the act of December last contains a plenary admission that the lands in question were never before subject to her ju risdiction. A part of the title is " to extend the laws of this State over" — " the territory now occupied by the Cherokees." The 6th section expressly extends the laws ofthe State over the same and the inhabitants thereof. Sir, does not the legislation of every State, of itself, operate upon all the country within its jurisdiction ? The laws of Georgia were not before limited to any parts of the State ; they were general — they covered the whole ; and are now — extended over the residue ! We have heard a great deal in this debate of the right of conquest ; and are told that it is always recognised as valid by the judicial tribunals. True, Sir, by those of the conqueror. How can they do other wise ? Suppose that Congress should now declare a war for the sole purpose of wresting Canada from Great Britain, and should succeed ; could our own courts question this exercise of political power, and refuse to sustain our jurisdiction over the country, however iniquitous the acquisition ? And if in this government, where the political sovereign is under the restraints ofthe Constitution, the courts cannot interfere, how could they in Europe, where this doctrine had its origin ? There the legis lative and political powers are unlimited. Even in England, the parliament is legally omnipotent ; and who ever heard of a judicial court undertaking to annul any of its enactments? Whatever may be the acquiescence of other nations in the exercise of power by a conqueror, it is no ground of just claim 58 MR. sprague's speech. as against the conquered.— They surely are not bound to submit, if new means of resistance can be found. _ To give to conquest— to mere force— the name of right, is to sanction all the enormities of avarice and ambition. Alexander and Bonaparte are justified !— Britain has done no wrong, Bail with the king's vessels, " ad inveniendum, discooperiendum, a inyestigandum quascunque insulas, patrias, regiones sive pro- vincias Gentilium et infldelium,in quacunque parte mundi positas qua Christianis omnibus ante hax tempore fuerunt incognita^' MR. STORRS'S SPEECH. 109 They are then commanded to take possession of their discoveries. The Latin is as barbarous as the doctrine. No translation could do it full justice. It is not improbable that this paper was the work of Empson and Dudley, who were the confidential advis ers of Henry VII. Their characters are well known to all who have looked into any history of that period. The kingdom is said to have never been in a more disreputable condition than it was at that time. No man was safe ;.-and this reign is said to have been chiefly distinguished by its rapacity and meanness. The successor of this king rewarded the crimes of Empson and Dudley by a bill of attainder. James I. made some improvements upon these examples of his predecessors. A tang who held his notions of prerogative at home was not apt to respect the rights of those abroad very high ly. He commissioned Richard Penkevel to sail on a voyage of discovery, and took care to make " assurance doubly sure" to the lands of the natives of America. He prescribed in Penkevel's commission the tenure by which the lands were to be held, be fore the voyage was even commenced, declaring that they should be held " of Us, as parcel of our manor of East Greenwich, in Kent, in soccage, and not in capite." It was on a notion derived from some commission or charter of that sort, that the right of parliament to tax America was maintained about the time of our revolution, on the ground that we were represented in the house of commons as parcel of the county of Kent. Now, Sir, it is useless for gentlemen to puzzle themselves with learned theses and ingenious disquisitions, to show that the European nations would have been justified in expelling the natives from their lands, on the ground that they were in a state of nature, and that man in a state of nature has no right to any thing which he holds — not even to his life. King Hemy, James, Ferdinand and the pope, set up no such doctrines themselves. They doubtless asserted the best which they could find, and ought to have the privilege of being heard for themselves, and justifying themselves upon their own principles. We may search as closely as we can into the history of the claims they set up, and shah find, at last, that they were defended solely on the ground that these were her etic and infidel countries, and that the claims of heretics and in fidels to the earth were entitled to no regard in preference to Cathohc dominion. But as the age of superstition and bigotry passed away — as prerogative became weakened, and popish su premacy fell into disrepute — as the minds of men became enlarg ed, and the pubhc law improved — better principles were establish ed. Before the beginning of the last century, moral and pohtical science had become too far emancipated from the superstition and intolerance of the times of Alexander VI., as well as the Tudors and Stuarts, to sanctify any longer the violences which had been committed in the name of religion and prerogative. Grotius had long before given the true foundation of all original title. " Pri mus acquirendi modus est occupatio eorum qua nullius sunt." We have the right to take that which others have not already ap propriated to themselves, but we have no right to take away our 10 110 MR. STORRS'S SPEECH. neighbor's property. This was the rule laid down by that great civilian and Christian moralist. Then it came to be held by some, that Indian occupation was no occupation for any purpose ; that it was the state of nature without the security of natural law. Some were so very liberal as to admit that the Indians were men, but held that they roved over the earth as vagrants and outcasts of the human family, with no more title, even to what they actu ally cultivated, than the brutes that fled before them, or the winds which passed over the forest, and that they were fair subjects for force or fraud for all who might find it to be their interest to en snare or hunt them down. There were John Bulkleys before 1734, who held to this doctrine as stoutly as John Bulkley of Col chester. But I doubt if any other treatise like this can be found in the whole histoiy of New England. Why these people were, above all others, to be excluded from the social law of mankind, was not as closely inquired into as it might have been. It was true that their kings and sachems had few or no prerogatives. They were generally governed by councils assembled from the whole nation* But if the head men and warriors proved to be sometimes refractory, the kings had no power to send them to Tower-hill or Tyburn. They hghted up no fires for heretics, and never sent their own prophets to the stake. They roasted their enemies only. They were ferocious and merciless hi war, but they had no St. Bartholomew days. They held large tracts of uncultivated country, but they had no laws of the forest. It was neither death nor transportation for a starving man to take a deer ; and it is probable they never heard a discussion on the morality of spring-guns. They believed hi witchcraft as well as some others of their fellow-men ; and in that they came somewhat nearer to a certain king, who sat in his closet with his treatise on demonology open before him, and conveyed away their country, by parchment and green wax, before he knew where it was to be found. We cannot deny that the European governments origin ally held the rights of the Indian nations hi veiy little regard. There were great temptations to treat them lightly, and they were not looked upon with that deference to the sounder principles of justice, and that humanity which has since so highly unproved the moral law of nations. The spirit of avarice was excited, and the thirst of dominion was tempted, by the developements of the resources of the new world. Grants and charters followed, and were often dispensed as rewards to favorites. But, Sir, whatever may have been the theories on which the government at home asserted its supremacy, I deny that our English ancestors, who first colonized these States, ever countenanced that disregard of Indian rights, or carried into practice that system of injustice to the native inhabitants, which has been asserted in the report of the committee on Indian affairs. On the settlement of the coun try, one of two courses was to be pursued — to deny altogether the claims of the Indian occupants for any purpose, and to dis possess them by violence, under any plausible or convenient pre text, or to treat them as holding a qualified right in the soil, and extinguish their title honesdy by purchase. We have already MR. STORRS'S SPEECH. Ill seen, in the proclamation of Ojeda, the system pursued by Spain. The natives were treated as fit for spoil only. The history of Spanish America is the most disgraceful tissue of injustice, cruel ty and perfidious villany, which stains the annals of Christendom ; and Spain has suffered "for her crime the retributive justice of Providence. But, to the honor of our ancestors, history has given us no North American annals like these. They held the doctrine of discovery so far as to protect the chartered rights of the colo nies against the encroachments of others; but they never sanction ed any system which left the Indian nations unprotected agamst themselves, and fit subjects for lawless plunder. They were men who acted up to their professions before the world. The honor able gentleman from Tennessee, in asking where we should look for the monuments of William Penn, directed us to die noble in stitutions and enviable prosperity of Pennsylvania. This is all veiy just to the name of Penn, but it falls short of full justice to his memory. I can tell him where he can find another monu ment to the fame of that excellent man. Vattel has perpetuated his name to all ages, and in all nations, in that work hi which he has commended to all mankind the invariable respect, in which William Penn and the Puritans of New England held the right of the native inhabitants of America to their country. It is very true, that, in the colonies, the crown was considered as the only legitimate source of title for its own subjects ; and in most of them the lands were generally held under patents from the crown, or the colonial governments. This was early establish ed, and continues to be maintained to this day. The discoveries had been made under commissions from the crown, and posses sion was taken in its name. As between the king and his sub jects, the lands were treated as the domain of the crown, and In dian purchases were not admitted against the grants of the king or his title. He was considered, in theoiy, hi the light of an orig inal feudal proprietor of the country. It was therefore said, that what othenvise might have been called, at the bar of the courts, the seisin of the Indian nations, was nothing more agamst the crown than a naked occupancy. By the original title of the col onists, under their charters, they held, in fact, under the king, as the lord paramount of the realm. We hold tliis doctrine our selves, so far as it applies to our governments. But we claim no supremacy over the Indian right, even in theoiy, because they are to be treated as in a state of nature, and -without governments of their own, which we have never acknowledged, or as heretics and infidels. Instances may doubtless be found hi our history, (and the committee have been able to collect a few,) in which there was occasionally collision between some of the colonists and the Indian nations on the point of title. It is probable that, in some few cases, injustice was done. But the practice of the col onies settled down at last in favor of the sanctity of the Indian ti tle to then- lands. The committee have suggested that we should not give much weight to " the stately forms which Indian treaties have assumed, nor to the terms often employed in them," but that we should 112 MR. STORRS'S SPEECH. rather consider them as "mere names" and "forms of inter course." If treating these Indian nations as proprietors of a qual ified interest in the soil — as competent to enter into treaties— to contract alliances — to make war and peace — to stipulate on points involving, and often qualifying, the sovereignty of both parties, and possessed generally of pohtical attributes unknown to individuals, and altogether absurd in their application to subjects, is nothing more than "mere names," and " stately forms," then this long prac tice of the crown, the colonies, the States and the federal govern ment, indeed proves nothing. Words no longer mean what words import, and things are not what they are. But these treaties have been looked upon as something quite substantial in the time of them. Things as firmly settled as these are not to be easily mov ed. This most honorable portion of our history is not to be ob literated by a dash of the pen. From a period not long anterior to the revolution in England, there are numerous Indian treaties made by agents of the crown as well as the colonies. These were doubtless made with the full approbation, and, in many in stances, under instructions or advice from the crown officers. They have been acted upon and acknowledged in a way that puts all question as to their obhgation at rest. The crown and the colonies found it to be their interest to take that course. The motives which led to it were various, and are quite obvious even to a careless reader of our history. As long ago as 1684, we find a " definitive treaty" made at Alba ny, between lord Effingham, then governor of Virginia, and colo nel Dongan of New York, with the Five Nations. One of the chiefs said to them on that occasion, that " this treaty had spread so far in the earth that its roots would reach through tile whole land, and, if the French should tread upon the soil any where, the Indian nations would unmediately feel it." They kept this treaty faithfully, and the colonies owed their security, for many years, to it. Shortly before our revolution, the principle may be consider ed to have been so far settled, that these nations might well claim to be invested with the capacity to contract hi that way, as quali fied sovereignties. The doctrines held in the time of Henry VII. and the Stuarts were completely changed before the declaration of independence. On the 8th of April, 1772, general Gage issu ed at New York, " by order of the king" a proclamation fully re cognising the obligations of the crown, under its treaties with the Indian nations. I do not mean, Sir, to be understood to say, that this acknowl edgment of qualified sovereignty would have been admitted by the British government to the full extent that we have carried it since. We found it so far settled at the period of our independ ence, that we openly adopted it as the public law for ourselves. We have ever since placed our relations with the Indians on that footing, and they are not to be disturbed now on any fanciful hy pothesis. As to their right to the soil, however, that was long be fore solemnly settled in practice, and has remained so for a peri od too long to be now questioned. New England is held under fair and honest purchase from the natives. A very small part of MR. STORRs's SPEECH. 113 it was ever claimed by actual conquest. Pennsylvania and New York were acquired in the same way. Mr. Jefferson says, in his Notes, speaking of Virginia, "That the lands of this country were taken from them by conquest, is not so general a truth as is sup- ' posed. I find, in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country ; and many more would doubtless be found on further search. '¦ The upper country, we know, has been acquired altogether by purchases made in the most unexceptionable form." There is not a foot of land now held by Georgia, for which we cannot pro duce, from authentic history, her title by purchase from the In dian nations. This system, Sir, was conscientious in itself, and founded in good morals. We may here stand up boldly, like honest men, before all mankind. I am not willing to blot out these fairest pages of our history. I will not consent that these proud monuments of our country's honor shall be defaced. I would not darken the hving light of that glory, wliich these illus trations of the justice of our ancestors have spread over every page of their history, for all the Indian lands that avarice ever dreamt of, and all the empire which ambition ever coveted. The administration appears to have conceded to Georgia the right of sovereignty and soil which she claims; in the report of 1827, over the Cherokees and then- lands, under the impression that such was the operation ofthe treaty of 1783. The Secretary of War has placed it on that ground, and assumed, in that respect, the principles of the Georgia report. We have never considered the treaty as any thing more than the acknowledgment of our in dependence, and we took the rights of the crown by accession. The king admitted that he treated with us as a power already in dependent. He granted us nothing of our sovereignty. He merely relinquished, for himself and his successors, his claim to the government, propriety and territorial rights over the country. We do not claim these from his gift The treaty took no such form. We became independent, in fact, in 1776, and our nation al capacity came into existence at that time. We were then at liberty, as an independent power, to adopt any policy, or assume any principles, we believed to be just in regard to the Indian na tions. It is too late to inquire whether we might not have begun differently. We must be bound now by the system which we in fact adopted ; and our inquiry should be to know, by what princi ples of public law we are pledged before the world to abide, in our conduct towards the Indian nations. What doctrines, then, have been assumed, acknowledged, affirm ed, estabhshed, and acted upon for almost half a centuiy on our part, and trusted to by those we have dealt with ? Before you made the treaty of 1783, you had acknowledged the qualified sovereignty of some of these nations. In 1776, we guarantied to the Delaware nation " all their territorial rights, in the fullest and most ample manner, as it had been bounded by former treaties." The treaty states that the article was inserted to obviate the false suggestion, which our enemies had, by every artifice in their pow er inculcated upon all the Indians, that the United States intend- 10 * 114 MR. STORRs's SPEECH. ed to extirpate them, and take possession of their country. In the treaty of 1804, they were acknowledged to be the "original proprietors ,-" and you then admitted them to be the "rightful own ers" of the lands there referred to. An arrangement was provid ed, in some of your treaties, for allowing the Delawares and Cher okees deputies to the Old Congress. I could refer you to numer ous treaties, before and since the treaty of 1783, which conclu sively repel the notion that the Indians were transferred to us as serfs ofthe crown. It would be an unpardonable waste of time to examine them, or a fiftieth part of them. They include almost every Indian nation within the States. The Old Congress acted throughout on the principles which I have stated. The Constitution has put to rest a question which arose out of the power of Congress under the Confederation, and shows how largely it was intended to vest the management of Indian affairs in the new government. The articles of confederation had nar rowed the power of " regulating trade, and managing all affairs with the Indians," by confining it to such as were not members of any ofthe States, and providing that the legislative right of any State within its own limits should not be infringed or violated. The Constitution omitted these restrictions. Mr. Madison, in the Federalist, speaking on this point, says : " The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of confed eration, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State is not yet settled, and has been a question of frequent perplexity and contention in the federal coun cils. And how the trade with Indians not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of confederation have inconsiderately en deavored to accomplish impossibilities ; to reconcile a partial sove reignty in the Union, with a complete sovereignty in the States ; to subvert a mathematical axiom, by taking away a part, and let ting the whole remain." All which can be said in any sense to have passed to the Unit ed States or to the States from the crown, was a naked right of pre-emption to what were called the crown lands. I speak ad7 visedly when I say that the United States have solemnly and de liberately admitted it. This question was fully examined by the government almost forty years ago, and we stand pledged in such express terms to the Indian nations on this point, that our lips are sealed. They can show you a case on their part, that defies all cavil and all criticism. I know that this is strong language, but I have measured my words. I know well the extent of what I say, and what I pledge myself to show in saying what I do. It is not a thoughtless pledge, and it shall be redeemed by proof from the archives of your own government, which all the subtleties of in- MR. STORRs's SPEECH. 115 genuity cannot evade, and which will annihilate that learned and labored hypothesis, on which the rights of the Indians have been denied by this administration and in these halls. I invite the at tention of gentlemen to the papers, which can be produced on this subject, and should be gratified to hear what answer is to be made to them. Before general Wayne moved with the army in 1793, gene ral Washington determined to make one more effort for peace with the Indian nations then confederated against us. The cabinet was convened, and the whole subject of a negotiation was laid before them. The question as to the rights ofthe In dian nations was there deliberately examined, and the opinions of the cabinet were required by the President. In the first place, Mr. Jefferson has furnished us fully with his own opin ion in the late publication of his papers. "February 26, 1793. "First Question. We were all of opinion that the treaty should proceed, merely to gratify public opinion, and not from an expectation of success." ******* " Second Question. I considered our right of pre-emption ofthe Indian lands, not as amounting to any dominion or juris diction, or paramountship whatever, but merely in the nature of a remainder after the extinguishment of a present right, which gave us no present right whatever but of preventing other nations from taking possession, and defeating our expec tancy ; that the Indians had the full and undivided sovereignty as long as they chose to keep it, and that this might be for ever ; that as fast as we extend our rights by purchase from them, so fast we extend the limits of our society ; and as soon as a new portion became encircled within our line, it became a fixed limit of our society." Another question seems to have arisen in fhe cabinet, which, as far as I can gather from the book before me, (for I have not been able to lay my hand on the original papers,) involved a re-cession to the Indians of certain lands purchased before. Mr. Jefferson was of opinion that the government could " no more cede to the Indians than to the English or Spaniards, as it might, ore acknowledged principles, remain as irrevocably and eternally with the one as the other." The negotiation proceeded. Beverly Randolph, Benjamin Lincoln and Timothy Pickering, were nominated to the Senate, on the 1st of March, as commissioners, and their appointment confirmed. Their instructions are expressed on the face of them to have been given by general Knox, "by the special di rection of the President of the United States." A part of their address to the Indian council is as follows : " Brothers — Now listen to another claim, which probably has more disturbed your minds than any other whatever. "Brothers — The commissioners of the United States for merly set up a claim to your whole country southward of the great lakes, as the property of the United States, grounding this 116 MR. STORRs's SPEECH. claim on the treaty of peace with your father, the king of Great Britain, who declared, as we have before mentioned, the mid dle of those lakes, and the waters which unite them, to be the boundaries ofthe United States. Brothers — We are determined that our conduct shall be marked with openness and sincerity. We therefore frankly tell you, that we think those commissioners put an erroneous con struction on that part of our treaty with the king. As he had not purchased the country of you, he could not give it away. He only relinquished to the United States his claim to it. That claim was founded on a right, acquired by treaty with other white nations, to exclude them from purchasing or settling in any part of your country; and it is this right which the king granted to the United States. ******* Brothers — We now concede this great point. We, by the ex press authority of the President of the United Slates, acknowledge thepropeHy or right of soil of the great country above described to be in the Indian nations, so long as they choose to occupy the same. We only claim particular tracts in it, as before mentioned, and the general right granted by the king, as above stated." * * * * * * These papers are to be found in the manuscript volumes of the Senate. They were communicated to that body by gene ral Washington. The originals were doubtless in the war department when the present Secretary wrote his letter of the 18th of April, to the Cherokee delegation. In an address of Mr. Jefferson to the Cherokees, during his administration, he says: " I sincerely wish you may succeed in your laudable endeav ors to save the remnant of your nation by adopting industri ous occupations, and a government of regular law. In this, you may always rely on the counsel and assistance of the United States." These, Sir, are " the lights that flow from the mind that founded and the mind that reformed our system," speaking of which, one has said to his country, that a diffidence, perhaps too just, in his own qualifications, would teach him to look with reverence to the examples of public virtue left by his illus trious predecessors. Mr. Jefferson's opinion to general Knox in 1791, speaks a language that cannot be misunderstood. He there says, " Gov ernment should firmly maintain this ground; that the Indians have a right to the occupation of their lands, independent ofthe States within whose chartered lines they happen to be ; that, until \they cede them by treaty, or other transaction equivalent to treaty, 'no act of a State can give a right to such lands ; that neither un der the present Constitution, nor the ancient Confederation, had any State, or persons, a right to treat with the Indians, without the consent ofthe general government." What is the answer, Sir, which the Cherokees and Creeks have received to all this ? The modern records of the department of war, and MR. STORRS'S SPEECH. 117 the papers on our table, will show us no very enviable contrast to that just and humane policy, which the administration of Washington solemnly pledged us to follow in our intercourse with these unfortunate people. If any thing can bind a govern ment, we have not a pretext for denying the qualified sove reignty ofthe Indians. We have dealt with them by commis sioners appointed under all the forms of the Constitution. We have asserted our compacts to be definitive treaties with them as nations. We have ratified them like other treaties. They are promulgated in the statute-book as the law of the land. We have not only recognised them as possessed of attributes of sovereignty, but in some of these treaties we have defined what these attributes are. We have taken their lands as ces sions — a term totally senseless if they are citizens or individuals. We have stipulated for the right of passage through their coun try, and for the use of their rivers — for the restoration of prison ers — for the surrender of fugitives from justice, servants and slaves. We have limited our own criminal jurisdiction and our own sovereignty, and have disfranchised our citizens by subjecting them to other punishments than our own. With the Cherokees you have, in one treaty, stipulated the manner of proceeding for injuries, by a formal declaration of hostilities before war. These are some of the most prominent and re markable of your acts. You cannot open a chapter of Vattel, or any writer on the law of nations, which does not define your duties, and explain your obligations. No municipal code reaches them. If these acts of the federal government do not show these nations to be sovereign to some extent, you cannot show that you have ever acknowledged any nation to be so. The condition of these Indian nations is not treated of by au thors on public law in Europe, because no such condition of things exists there. You may find some analogies in former times, but they will turn out to be against you. If you look to the moral law, you can find no escape there. I might ask, Where was your authority to make the compact with Georgia ? The lands to be acquired were not to be of the domain ofthe general government. What is the bill now be fore us? Who are the "nations" with whom we have "ex isting treaties ?" Who are to receive new guaranties from the United States, if, after this, they will accept another from us ? Who are those that the President is to exercise a " superinten dence" over ? Are they citizens ? The framers of this bill have not been able to make its provisions intelligible, without admit ting much which they deny in sustaining it. The guaranties now proposed are as much a dismemberment of the sovereignty of the United States as former ones were of Georgia. The only difference is, that the President alone is to act in this matter, while your treaties were made by the States in the Senate, where the sovereignty of Georgia was represented. If there is any thing in this part of the argument against the Chero kees, gentlemen are bound to protect the sovereignty of the United States, by voting against this bill. The President in- 118 MR. STORRS'S SPEECH. forms us, that they are to have "governments of their own choice" located on our domain. There is nothing alarming to our own security or our pride in admitting this sovereignty in the Indian nations. We took care, in the first instance, to obtain all necessary limitations of it. They confessed themselves to be under our protection ; that their lands should be sold to us only ; that we should regu late their trade ; and we stipulated for various other restrictions on their part. Great foresight and wisdom in this respect were shown, by those who first admitted them to their present con dition. The treaties manifest how carefully this matter was guarded, and we have suffered no inconveniences from it, of which reasonable men should complain. We have made them subordinate to us, in all essential points, by express treaties. Our intercourse laws are founded on the system we have adopted ; and, though their constitutionality has been question ed too, it is not probable that Mr. Jefferson approved any law that palpably violated the reserved rights ofthe States. If the question before us is not settled at this day, there is nothing settled in the government. Every thing is to be kept floating. We shall never know what our institutions are, nor will others know when, or whether to trust us at all. The mischiefs which are to follow to the Cherokees are in calculable. They were told forty years ago what we then ad mitted their rights to be. They are now in a great measure reclaimed, under our counsels, from their former condition, and have begun to realize the blessings of civilization. When they have just reached that point, which is successfully calling forth their talent, and developing their capacity for moral improve ment, we are about to break up their society, dissolve their in stitutions, and drive them into the v/ilderness. They have lived for -a short time' under a government of their own, which very able counsel (Mr. White of the Senate) has vindicated in one of the most learned and conclusive opinions I have ever met with. Their right to adopt for themselves the institutions which they have established, and to assert the qualified sove reignty which they claim, is demonstrated in that paper, and settled upon ground that no argument or ingenuity can shake. This opinion, too, was given upon great deliberation, and shows that the whole question was cautiously as well as thoroughly examined. It is not to be viewed in the light of a mere pro fessional opinion. It exhibits the deductions and convictions ofthe mind of a civilian and statesman, drawn from a compre hensive and masterly view of the subject, in all its bearings and relations. If there could be doubt on any point considered in it, we might question the right of the Cherokee government to tax the United States traders. Their treaties had conceded that the regulation of their trade should be managed by the general government; and such an exercise of power, on the part of the Cherokees, might essentially defeat the objects and stipulations ofthe treaties. MR. STORRS'S SPEECH. 119 What, Sir, is the character ofthis government ofthe Chero kees, which appears to have offended the pride of Georgia so highly? They claim no jurisdiction over the concerns of any body but themselves. They have always had this, and always exercised it. Their government has lately assumed a more convenient form, and one better adapted to their improved condition. Their domestic institutions show more of civiliza tion and good order than we have seen among them before ; and I hope we do not reproach them for that. Their regula tions for the allotment of their lands, and the better government of their own people, interfere with nobody. I have never yet been able to see the force of that suggestion, which treats them as a State within the sense of that part of the Constitution which forbids the erection of any new State within the juris diction of any other without its consent. I think it has no ap plication to the case. The Cherokee government has neither been formed or erected as one of the States of this Union, or to be admitted into it. It is no more calculated to alarm the jurisdiction of any State than a certain kingdom lately project ed on Grand Island, the institutions at New Lebanon, or the family government at New Harmony. But it has been said, in answer to the claims of the Indians, that we hold our sovereignty over them and their lands by con quest, as well as discovery. I shall say but little as to that pre tension. They may have been defeated in battle. Their coun try may have been overrun by our armies. We may have in vaded them, and sometimes burnt their towns, and driven them into places of concealment. But it is essential to title by con quest, that we should have exercised the right which the laws of war allow to the conqueror. Have we taken away their lands, abolished their governments, and put them in subjection to our laws ? If this has not been done, (and history shows that it has not,) it is too late now to*say that there has been a time when we might have done it. So far from claiming to exer cise this right, we have closed our hostilities by treaties ever since we became an independent government ; and both parties were restored to their original condition, except on points which the treaties provided for. It must be considered, too, that when we set up the title of conquest, we seem to feel that discovery alone would not have reached the rights of soil against the native inhabitants ; and I thought the gentleman from Tennessee felt pressed in making out his case, when he assumed that discovery gave us the right to follow it up by conquest. The war must at least be lawful to justify that title, in any case, on the score of morality. I do not think that the position can be sustained, that, because we have discovered any new country, we have the right to conquer it. If we clioose to put it on the ground of mere force, I will not say that title by conquest may be denied, though the war may have been unlawful. But I do not agree that this was done on the discovery of America. Our history does not show it. 120 MR. STORRS'S SPEECH. I forbear to take up more of your time on this part of the question, for I fear that I have already wearied your patience. But before I leave it, I beg leave to call your attention to one ofthe many luminous papers which have issued upon this sub ject from the department of war. We have found a pamphlet on our tables containing a letter, of the 25th of August last, to the Rev. Eli Baldwin, Secretary of a Board formed in the city of New York, for the " salvation of the Indians." This Board is pledged, in its constitution, to co-operate with the federal government in its "operations on Indian affairs." But this article has fortunately restricted that hasty pledge by an ex press condition "at no time to violate the laws" ofthe Union. Of these laws, the intercourse acts and treaties are certainly the most sacred in right and morals. In replying to a letter communicating to the President a copy of the constitution of this benevolent association, the Secretary of War availed him self of the occasion to take it upoij himself to instruct the Board in that casuistry, by which the faith of our treaties might be impaired successfully. The argument is very brief, and the process quite summary, by which he accomplished this political absolution in our behalf. I do not feel at liberty to . hazard the omission of a single word, that might impair its merit or obscure its clearness, by undertaking to repeat it from memory. " How can the United States' government contest with Georgia the authority to regulate her own internal affairs ? If the doctrine every where maintained be true, that a State is sovereign, so far as, Tiy the Constitution adopted, it has not been parted with to the gene ral government, then it must follow, as matter of certainty, that, within the limits of a State, there can be none -other than her own sovereign power that can claim to exercise the functions of govern ment. It is certainly contrary to every idea of an independent gov ernment for any other to assert adterse dominion and authority within her jurisdictional limits ; they are things that cannot exist together. Between the State of Georgia and the Indian tribes within her limits, no compact or agreement was ever entered into ; who then is to yield ? for it is certain, in the ordinary course of exercised autho rity, that one or the other must. The answer heretofore present ed from the government, and which you, by your adoption, have sanctioned as correct, is the only one that can be offered. Georgia, by her acknowledged confederative authority, may legally and right-' fully govern and control throughout her own limits, or else our knowledge of the science and principle of government, as they relate to our forms, are wrong, and have been wholly misunderstood." Now, Sir, all this may seem to be very clear demonstration to its author. I do not doubt that he honestly thought it must prove quite convincing to all who should have the good for tune to meet with it. With your leave, Sir, " I'll talk a word to this same learned Theban." I should like to know whether it ever occurred to him, in the course of his profound investigations, that the question to MR. STORRS'S SPEECH. 121 be examined was, whether this was really the internal affair of Georgia only or not ? It would have been better to have proved this conclusion than to have assumed it He began to reason at the wrong end ofthe matter, and that is the misfortune of his whole argument. It must strike the mind of others, too, if the Secretary himself failed to discover it, that the powers which Georgia has hi fact parted with to the general government, must be exercised within the States, or they cannot be exercised any where. Yet Georgia remains an independent government, as to all the sovereignty she has reserved. What more is there in that paper but a jargon of words ? Adverse authority — exercised au thority — confederative authority ! I wish to hold the government of my country in some respect if I can, but I was ashamed to find the justification of one of its measures put forth in such a paper as this from one of the Executive departments. I trust that he answers for himself only, when he speaks of our knowledge of the principles of our own government, and then I will agree, that, if we are to judge from this paper, he knows very little about them. We are less justifiable in applying the principles which have been asserted to the Indian nations in Alabama and Mississippi. Before these States were erected, they were the territory of the United States. The jurisdiction was in the general government. There were no State rights in existence there. We had solemnly guarantied to the Creek nation all then- lands, and recognised their sovereignty under various treaties. These States have but re cently been admitted into the Union. Yet the President has said in his message, " It is too late to inquire whether it was j-usi in the United States to include -them (the Indian nations) and their terri tory within the bounds of new States, whose limits they could control. That step cannot be retraced. A State cannot be dis membered by Congress, or restricted in the exercise of her consti tutional power." It is not denied here, nor coidd it have been, that while this was the territory of the United States, -it was com petent for the government to admit the sovereignty of the Creek nation. But it is assumed, that the erection of this territory into States under the same Constitution which sustained the treaties, has abrogated our obligations. This casuistry will hardly mislead any very plain man. We are to be released from the effect of our treaties by our own act, against the will of the other party, who has faithfully kept them. Is it indeed too late to inquire if this be just ? I know of no such maxim among nations, if it is to be found any where. The Constitution secures the inviolabil ity of these treaties as effectually as it has the federal sovereignty of these new States. In acceding to the Union, they become bound with the other Stateaiin all their pohtical and conventional obhgations. If the older States remain bound by these treaties, (and no one, I presume, denies that,) the new States, as constitu ent parts ofthe federal sovereignty, are bound to respect and fulfil them too. The history of our guaranties to the Cherokee and Creek na- 122 MR. STORRS'S SPEECH. tions is stated at large in the executive journal of the Senate. General Washington came with general Knox to the Senate- chamber, and laid before the Senate the state of the difficulties existing between North Carolina and Georgia and these Indian nations. These States had protested against the treaties of the Old Congress as infringements of their legislative rights. Gen eral Washington stated that the Cherokees had complained that their treaty had been violated by the disorderly whites on the frontiers, but that, as North Carohna had not acceded to the Union, it was doubtful whether any efficient measures could be taken by the general government In relation to the difficulties between Georgia and the Creeks, it was stated to be of great im portance to Georgia, as well as the United States, to settle those differences, and that it would be highly embarrassing to Georgia to relinquish certain lands, wliich she alleged the Creeks had al ready ceded to her, and wliich her citizens had settled upon. To fix certain principles as instructions to the commissioners, general Washington stated several questions to the Senate for their ad vice. Among these was the subject of a cession from the Creeks ofthe lands in conu-oversy, and one of the conditions to be offered them on that point Was as follows : " 4th. A solemn guaranty by the United States, to the Creeks of their remaining territory, and to maintain the same, if necessary, by a line of military posts." The Senate advised and consented to this, and the treaty was negotiated and ratified. The differences with Georgia appeared ' then to be finally settled. On the 11th of August, 1790, general Washington stated to the Senate in a message, that as the obstacles to closing the difficul ties with the Cherokees had been removed by the accession of North Carolina to the Union, he should now execute the power vested in him by the Constitution, to carry into faithful execution the former treaty of Hopewell, unless a new boundary was agreed upon ; and proposed to the Senate several questions, as to the compensation to the Cherokees for that purpose, and the follow ing condition : "3. Shall the United States stipulate' solemnly to guaranty the new boundary which may be arranged ?" The Senate consented that this guaranty should be given, and the treaty of Holston was made in conformity to it It was nego tiated by governor Blount The manuscript volumes ofthe Sen ate show certain instructions from the government to governor Blount, of the 27th of August, 1790, which are so highly charac teristic of the administration of general Washington, that I have taken a brief extract from them, which I beg leave to read : " In order to effect so desirable a purpose upon proper princi ples, it is highly necessary that the United States should set the example of performing all those engagements, which by treaties have been entered into under their authority. It will be in vain to expect a consistent conduct from the Indians, or the approba- tion ofthe impartial part of mankind, while we violate, or suffer MR. STORRS'S SPEECH. 123 a violation of, our engagements. We must set out with doing justice, and then we shall have a right to exact the same conduct from the Indians." This 'is the history of your guaranties, and these the professions which you made when you offered them. They were given on mature deliberation, with the full knowledge of the claims of all parties, and were entered into with a solemnity which admonish es us that they cannot be safely trifled with. Against whom were they to operate ? Not against foreign powers, for they had no claims, nor against the general government. It was the claims of the States to their country, which we stand pledged to resist until they consent to part with it peaceably. It is claimed again, now, by some of the States, that our power to contract with these na tions, as qualified sovereignties, violates their jurisdiction. But we have seen that this question was fully before the Senate when we gave these guaranties, and general Washington then said, that since North Carolina had acceded to the Union, he should put forth the power entrusted to him- by the Constitution, to execute the trea ty of the Old Congress with the Cherokees. These guaranties cannot be executed at all unless the treaties and the intercourse laws are paramount to the laws of the States. The operation of the laws of Georgia, as well as Mississippi and Alabama, shows this. I know that there is nothing on the face of these laws, which proposes to exert any direct force for the removal of the Indians. But, under the existing condition of things there, the moral effect of these measures will as effectually accomplish this end as your army could do it. The Indians themselves believe it, and the Secretary of War well understands that to be the inevitable con sequence of them. I infer from a document on your table, that he has instructed your own agents to make use of them for that purpose. A letter from the Choctaw interpreter to the War De partment, ofthe 27th of November last, says : "I was put in pos session of the contents of your letter of the 31st ult. to colonel Ward, United States' agent to the Choctaws, and was ordered by him to interpret and fully explain the nature of the laws of Mis sissippi that were about' to be extended over them, and the bad consequence's that would 'attend, as they were not prepared to live under said laws. I have advised them on all occasions to make the best ^arrangement with the government they possibly can, and emigrate to the west of the Mississippi." The Secretary wrote to the agent ofthe Cherokees, since this measure has been pending : " The object of the government is to persuade, not co erce, their Indian friends to a removal from the land of their fa thers. Beyond all doubt,\hey cannot be peaceable and happy where they are ; yet still will they be protected to the extent that right and justice, and the powers possessed, require. Beyond this the President has neither the inclination nor the authority to go. It is idle tq talk of rights which do not belong to them, and of protec tion which cannot be extended. The most correct plan is to dis close the facts as they exist, that all in interest may be warned, and, by timely precaution, escape those evils of which experience 124 MR. STORRS'S SPEECH. has already afforded abundant indication there is no avoiding, sit uated where they are." We can all understand language of this sort without the aid of an interpreter. But the Cherokees and Creeks have declared that they will not leave their countiy. They peremptorily refuse to go over the Mississippi. Why, then, have these laws of the States been extended to them at this particular time ? We are told that this bill is only to come in aid of their voluntary emigra tion. But you have had their answer to that for years. Your table is covered by their memorials and protests against it. You have made large appropriations before now to effect that object, and have failed. Why, then, are you repeating these appropria tions at this particular time ? They are at your door, and tell you they will not accept them. Is there not reason, then, to believe that they are to be removed against their real consent and inch- nations, though no actual force is meditated in any quarter? Individuals may doubtless be found to surrender the lands of the nation which they happen to occupy. These lands then pass to Georgia. The nations are to be put at variance among them selves. Their social institutions are to be destroyed. The laws of the States have done that effectually. The lands surrendered are to be covered with white men. Can the Cherokees then five there ? Is that the protection which you have promised ? Is that the execution of your solemn guaranties ? Is that your deal ing with your plighted faith and national honor ? Sir, the confi dence of these nations hi the securities of then- treaties and your good faith is shaken. They feel that they are abandoned — that your laws have ceased to protect them — that their institutions are destroyed — that the pressure to be inflicted on them is such that they cannot bear it, and that they must abandon their country when this House shall have sanctioned the measure before you. The government is undoubtedly right in saying, that the In dians cannot live where they now are under these laws. And why, then, were they passed ? We are told in one breath that they are mostly mere savages^ and that all the efforts to reclaim * them have failed ; and in the next we hear, that, to cany into ef fect a very benevolent plan for their improvement, they are to be placed under the strict regulations of our state of society. Are we to understand by this that they are to be civilized by a legisla tive act ? It is useless, Sir, to consider this matter^gravely hi that way. We do not deceive ourselves by it, and shall mislead no body else. There is sagacity enough in the people whom we represent to understand it Think you that, with the Georgia re port before them, they will believe that the object of these laws is to reclaim the Indians, and improve their condition, so as to at tach them more strongly to their countiy ? The government has put this in its true light. The consequence will be, that, in their state of society, they can enjoy none of the practical benefits of the general laws of these States, and will be subjected, at the same time, to the whole range of their ordinary criminal jurisdiction, as well as another code applicable to themselves only. We hear it sometimes said, that they are to be admitted to the privileges of MR. STORRs's SPEECH. 125 citizens, as if some substantial privileges, which they do not now enjoy, were to be conferred on them. Why, then, do we find this bill here exactly at the time when they are to receive these favors ? If they are really to receive any new privileges, will they not be more contented where they are, and less inclined to go beyond the Mississippi ? It will be asked, too, by many who cannot understand this sort of reasoning, what particular benefits these States expect to obtain by extending their laws over some thousands of people who are said to be wild Indians, and bringing them within the pale of their society? There is certainly no State pride to be gratified by that. I shall not take up your time to answer questions of this sort. If these laws do not speak a lan guage that can be understood here, they will be veiy well under stood elsewhere. There is no reason to believe that Indian com munities disturb the peace of these States, if their own citizens will let them alone. The only sufferers in that respect are the Indians. There are laws enough to meet that case, if government will do its duty, and execute them faithfully. The Indians are a peaceable and inoffensive people, advancing rapidly in moral im provement, cultivating their lands, establishing schools and church es, and disturbing nobody. They have already patiently borne what we should not submit to ourselves, and they will bear much more, if we choose to inflict it upon them. But they are not prepared to live under our laws, if we had the right to extend our jurisdiction over them without their consent. The courts of justice in these States, will doubtless see that right is done so far as they are to administer the law in particular cases. But they will afford a slender protection against the operation of moral causes, which will reduce the Indians to the condition of outlaws in society. I am not satisfied that the funds to be provided by this bill are to be used in such a manner as we shall be willing hereafter to approve. The Secretary of War said last year to our commis sioners, " Nothing is more certain than that, if the chiefs and influ ential men could be brought into the measure, the rest would implicitly follow. It becomes, therefore, a matter of necessity, if the general goveinment would benefit these people, that it move upon them in the line of their own prejudices, and, by the adoption of any proper means, break the power that is warring with their best interests. The question is, How can this be best done? Not, it is believed, for the reasons suggested, by means of a general council. There they would be awakened to all the intimations which those who are opposed to their exchange of country might throw out; and the consequence would be — what it has been — a firm refusal to acquiesce. The best resort is believed to be, that which is embraced in an appeal to the chiefs and influential men, not together, but apart, at their own houses ; and, by a proper exposition of their real condition, rouse them to think of that ; whilst offers to them of extensive reservations in fee simple, and other rewards, would, it is hoped, result in ob taining their acquiescence." 11* 126 MR. STORRs's SPEECH. Now, Sir, disguise these suggestions as we may, there can oe no successful dissimulation in language ofthis sort It is sheer, open bribery — a disreputable proposition to buy up the chiefs, and reward them for treason to their people. It is the first time, so far as my knowledge extends, that such a practice has been unblushingly avowed. There is more, too, before us, which should attract the atten tion ofthis House. I see by a pamphlet before me, that our su perintendent of Indian affairs in the war department was sent to New York last summer to aid the benevolent institution, to which I have already alluded, with such information as he might possess in regard to these Indian nations. He delivered an ad dress, on that occasion, irrone of the churches of that city. In this he said, that, if the Indians were present, he would address them thus : " Brothers — Whether is it wise in you thus to linger out a cha fed, and impoverished, and disheartening existence, and die as your fathers have died, and leave the same destiny to your chil dren ; or to leaveyour country, and the bones of your fathers, which cannot benefit you, stay where they are as long as you may ?" I was shocked, Sir, when I met with the shameless avowal of such a sentiment, and addressed to such an audience too, by an agent of this government. I have no language that can express my detestation of it. No man, who cherished a spark of virtuous feeling in his heart, could have given it utterance. It deserves the marked reprobation of this House, as the guardi ans ofthe honor ofthe country, and the government ought not to retain him in his place a single hour. I am admonished, Sir, by the duty which I owe to the House for their indulgence, to occupy your time no longer. But I ask gentlemen to review the history of this government faithfully, and decide, if, on looking to the afflicting condition of these peo ple, and the certain consequences which are to follow, they can lay their hand upon their hearts as honorable men, and say that they feel clear in conscience in going any further with this meas ure. We are not dealing for ourselves in this matter. Our own reputation is not alone concerned. The character of the coun try is deeply involved in it. We shall not be able at last to dis guise our co-operation, in removing these nations from their country. We may now flatter and deceive ourselves as we may, but the time will come when our responsibility can neither be evaded nor denied. It must be met, and it is better for us to con sider now what we must meet. Our relations with the Indian nations are of our own seeking. We assumed our guardianship over them voluntarily, and we justified it, too, in the name of re ligion and humanity. We claimed it to be due from us, as a civi lized, enlightened and Christian people, to them, to our own character, and the opinion of the world. They never asked it of us. We stretched out our armtowards them, and they took our hand in the confidence that we should act up to our profes sions. It was we who solicited their friendship, and not they MR. STORRs's SPEECH. 127 ours. It was done for our convenience too, and not theirs. We offered them our faith, and they trusted to us. To attest our sincerity and win their confidence, we invoked the sanctions of our holy religion. They have confided in us like children, and we have solemnly pledged our faith, before God and all mankind, to fulfil our promises to them righteously. We came here aiid sat ourselves down in their country, and not they i n ours. They were then strong, and we were weak and helpless. They could have crushed us in the hollow of their hand. But we had fled from oppression and persecution in our own native land, and they received us here in theirs as friends and brothers. We have perpetuated their hospitality to our fathers on the gorgeous pan els which surround us. If we cherish in our hearts the slight est sentiment of honor or the least spark of gratitude yet fin gers there, we shall not be able to lift up our eyes and look around us when we enter these halls, without feeling the smart of that rebuke, which we deserve and must suffer for our perfidy. These memorials of their hospitality cannot be effaced until we shall have dilapidated these walls, or another enemy shall kindly inflict upon us a lesser disgrace. We came to these people with peace-offerings, and they gave us lands. As we increased in numbers, we increased our de mands, and began to press upon them. They saw us hemming them hi on eveiy side, and furrowing down the graves of their fathers. As their subsistence was wasting away, they remonstrat ed agamst us. We were deaf to their reproaches. They implor ed us to remember their kindness to us, but we turned away from them. They resisted at last, and flew to their arms. Fierce and bloody wars followed. We felt their power, and if they had been united, or had foreseen what we are now doing, we should not now be in these seats. We met again in friendship, and estabhsh ed our treaties with them. We pledged our faith, and gave them our solemn guaranties that we would come no farther. I hope that we shall feel it to be our duty to observe them "like honest men. But are we asked, Will you leave things in their present condi tion ? Will you refuse to treat with them ? No. But if I am asked when we shall treat, I am ready to answer, Never, Sir, never, till they are at perfect liberty, and free from all restraint I should not consider a treaty made with them, in their present wretched and forsaken condition, as morally binding on them. I will not consent to take advantage of men in their situation. I am sick — heart sick — of seeing them at our door as I enter this hall, where they have been standing during the whole of this ses* sion, supplicating us to stay our hand. There is one plain path of honor, and it is the path of safety, because it is the path of duty. Retrace your steps. Acknowledge your treaties. Confess your obligations. Redeem your faith. Execute your laws. Let the President revise his opinions. It is never too late to be just. Let him extend his hand to them as a brother— as their great father indeed. The power of the government is at his command. Let him set them free. Above all things, win back their confidence. 128 MR. STORRS'S SPEECH. Convince them that they may trust you again as friends. , If you will do this, and they are free to act without any coercion, I am ready to execute any treaty which they will make with you. But it must be done "peaceably" — in the true spirit of our obhgations to Georgia, and in no other way* I wish they were in a condi tion to treat with us fairly. I wish it for the sake of Georgia, for them, and for ourselves. But I will not consent that govern ment shall operate on their fears. It is unmanly and dishonor able. I will not agree to inculcate on then- minds the shghtest suggestion that they are not to be protected fully, fearlessly, and faithfully. They are now shrinking under the terror of the ca lamities,' which they believe await them when this bill shall have passed. They believe that the laws of the States are not to be extended over them for good. It is immaterial whether they are right or not in this belief They believe it to be for evil, and an archy is now there in its worst forms. I have too much confi dence in Georgia to believe that she will suffer any violence to be committed under her authority. But the effect produced by her laws has not left these people free agents. These States have no right to ask us to act under such circumstances, or, if they do, we ought to judge of that for ourselves, and refuse to act, if we think the honor of the government forbids it. Heal the Wounds which you have inflicted, and convene their councils. If they will then treat with you, bring your treaty here instead of this law. We shell then know what we are doing. I will then sus tain the Executive, by my humble- vote, in all that he shall prom ise in our name. He shall have countless millions to fulfil our faith. The U-easures of the nation shall flow like water, and the people ofthis country will bear any burden, rather than suffer the honor of their government to be stiined with perfidy. But for coercion, or any thing like coercion, moral or physical, direct or indirect, I will vote nothing — not one poor scruple. I will take no responsibility that may involve the country in that taint upon our reputation, nor be accessory to it. No pride of opinion should influence us. There are no laurels to be won in this field. There is no victory to achieve over a people in their situation. There is no reward before us but disgrace and the detestation of our fel low men. If this bill passes, they will submit to all the injuries which may be inflicted upon them, for it is no longer in their power to resist. They will bear it as long as men can bear oppression, but they will sink under it at last. If we were in their situation, we should not leave our own countiy willingly. We, who are strong and proud, and restive of restraint, should fly to arms for half what they have suffered already. We have done it, but we had friends to sustain us. The Indian must submit. When we have turned him away from our door, he has no friends any where. Shall we, who boast so much of our institutions, and talk so loftily of Eatriotism, reproach him because he loves bis countiy too well ? ecause bis heart is not as flinty as we would make it ? because he lingers too long among the graves of his fathers ? But, Sir, if the fiat is pronounced here, he will go. He must go, for he can- MR. STORRS'S SPEECH. 129 not stay there and live. They will leave the fields which they have reclaimed from the forest, and laid open to the sun — their comfortable dwellings! — their flocks — their schools — their church es — ay, Sir, then- Christian churches, which we have built there, and wliich now stand where the stake of the victim was once planted. But they will not leave the graves of their fathers. A whole nation, in despair, will piously gather up then- bones, and retire to your western forests. When they shall have reached its nether skirts, they will look back for the last time from the moun tain over this beautiful land of their fathers, and then, retiring to the deeper shades witliin, will curse your perfidy, and teach their children to execrate your name. We could bear reproach from the proud and the insolent, but there is eloquence in the humility with which these people plead their wrongs. We feel our guilt in the very submissiveness with which they approach us. I have viewed this question in all the lights which have offered themselves to my mind, and I can see no way to dispose of it safely but to stop where we are — to go no further — but to retract openly, honorably, and immediately. Every step we advance in this injustice will sink us deeper in disgrace. But, Sir, to reject this "measure is not enough. We cannot regain what we have already lost, unless our laws are executed. We cannot leave our seats here, and do this ourselves. Without the co-operation of the Executive, we are powerless; and if he will not pause — if he will not execute the treaties — if the laws are suffered to sleep — if rea son and justice are slighted, and expostulation is in vain— if his oath will not awaken him to stretch forth his arm fearlessly and honorably to sustain the Constitution and laws of the country, and the rights of these oppressed people — he shall go on upon his own responsibility, and that of those who may be about to place this measure in his hand. Be the consequences what they may, the stain of whatever may happen shall be upon his hands. My poor opinion in this matter may be worth veiy little here, and I may be mistaken in my apprehensions. I will leave this to time and those who come after us. But, holding the opinions I do, I will take no share of the responsibility of carrying this meas ure through the House. On a subject as momentous as this, it is better for us, and more just to our constituents, that we should postpone this measure, and let the question be fairly and fully presented to them before we act upon it finally. They have a right to demand it of us. Let the feeling and judgment of the countiy be consulted. When this bill has passed, the whole mat ter is beyond our reach and theirs. The memorials on your table ought not to be lightly trifled with, and will not be safely despised. This thing is not to be done here in a corner, without responsibili ty. It will be stripped of all the mysteries and vain disguise in wliich we may hope to conceal its real character, and be put to the severest scrutiny. Surely, Sir, we must wish that we felt confident of that enlightened support in pubhc opinion, without which we caimot be, and shall not find ourselves sustained before the countiy. 130 MR. STORRS'S SPEECH. We may differ on points which affect our internal policy only, without responsibility to others.- But our Conduct in this affects the security of the social law of all mankind, and which all na tions are interested to sustain. They have the right to sit in judg ment upon us. That part ofthe law of nations which commands the observance of treaties, is the law of the whole human family. Though the present measure may not immediately affect other civilized nations, and they may have no right to interfere, yet they have the right, for their own security, to put in action the moral feeling, of the world against the effect of our example. Whatever our opinions may be of the invasion of France, as a question of original interference, the powers of Europe were fully justified in the measures which they took in 1815, on the return of Buona parte from Elba. As the violator of treaties, he had placed him self out of all civil and social relations. " There was no security for any government, if so dangerous an example, by such a for midable power, should haye been able to sustain itself. I have nothing to say of the subsequent disposition of his person. It does not concern the question before us. But the opinion of mankind sustained his expulsion from France, if not from Europe, and history will sanction it. The eye of other nations is now fix ed upon us. Our friends are looking with fearful anxiety to our conduct in this matter. Our enetnies, too, are watching our steps. They have lain in wait for us for half a century, and the passage of this bill will light up joy and hope in the palace of every des pot. It will do more to destroy the confidence of the world in free government, than all their armies could accomplish. Our friends every where will be compelled to hang their heads, and submit to this reproach of their principles. It will weaken our institutions at home, and infect the heart of our social system. It will teach our people to hold the honor of then government lightly, and loosen the moral feeling of the country. Republics have been charged, too, with insolence and oppression in the day of their power. History has unfortunately given us much proof of its truth, and we are about to confirm it by our own example. But, Sir, we must stand at last at the bar of posterity, and answer there for ourselves and our country. If we look for party influ ence to sustain us now, it will fail us there. The little bickerings, in which we now bustle and show off our importance, will have then ceased and been forgotten, or little understood. There will be no time-serving purposes to warp the judgment— no tempta tions to entice into error — no adulation to offer unto power, or to win the favor of the great — no ambition to be exalted, and no venal press to shelter wrong, to misrepresent the truth, or calum niate the motives of those who now forewarn you of your respon sibility. The weight of a name will not sustain you there, and no tide of popularity will carry you along triumphantly. Our coun tiy will be brought by the historian — custodiafidelis rerum — to that standard of universal morality, which will guide the judgment and fix the sentence of posterity. It will be pronounced by the im partial judgment of mankind, and stand forever irreversible. The MR. STORRS S SPEECH. 131 character of this measure will then be known as it is. The full and clear light of truth will break in upon it, and it will stand out in history in bold relief. The witnesses who will then speak will be those illustrious men who have not lived to see this day. Your histoiy, your treaties, and your statutes, will confront you. The human heart will be consulted— the moral sense of all mankind will speak out fearlessly, and you will stand condemned by the law of God, as well as the sentence of your fellow men. You may not five to hear it, but there will be no refuge for you in the grave. You will yet five hi history ; and, if your children do not disown their fathers, they must bear the humiliating reproaches of their name. Nor will this transaction be put down in history as a party measure. Our. country, too, must bear the crime and the shame. I have been a party man, Sir — perhaps too much so — "and I have contributed nothing to place the present Chief Magistrate in the station which he now holds — as yet under the Constitution, and not above it. But I should deem it a lesser evil and a more supportable calamity — and I declare to you, that I had rather see him, or any other man, created dictator at once, and let him sway our destinies for one life at least, than suffer for a single hour the shame of feeling that my country must submit, before the Chris tian world, to the disgrace of being set down in history as the vio lator of her treaties, and the oppressor ofthis helpless people, who have trusted so confidingly to her faith. But I will not despond, or give up all for lost. When it is con sidered how little, after all, these States really have at stake on this question, and how trifling the acquisition of this paltry terri tory must be, I cannot believe that they will refuse to make some sacrifice, or concession of feeling, to the reputation ofthe country. Are not our honor and our reputation, our interests and our glory, theirs ? Are they not bound up with us in one common lot, for good or evil, as long as this Constitution and our Union shall en dure, and until the blessings, which, under the goodness of Prov idence, it may long dispense to our common country, shall be for ever withdrawn ? — until that appalling night of despotism shall descend upon the world, and lower upon the whole family of man, when this bright constellation shall have set, and the last hope of human freedom shall have been forever extinguished ? What are these miserable remnants of Indian land worth to them or to us, if, in settling an abstract question of jurisdiction, we are about to expose ourselves and them to the imputation of bad faith ? New York, Pennsylvania, Virginia, and Ohio, have all yielded to the constitutional authority ofthe Union, on points quite as essen tial, in their opinion, to their sovereignty as this. There is nothing to be won in this controversy that is worth a moment's thought, in comparison with the condemnation that lies beyond it. To avert such a calamity, I will yield much — very much. I will give up almost any thing here. I will claim nothing of these States that shall offend their pride. The point of honor shall be conceded to them, and our good faith shall be vhidicated by a concession from their patriotism. I will not yet give up even this hope. Nor will I believe that the Chief Magistrate will suffer the 132 MR. STORRS'S SPEECH. reputation of his administration and the countiy to be tarnished. I will look there, too, for better counsels, and a more dehberate examination of the ground on which he has placed himself. Whether we favored his elevation to his present station or not, we may all unite in wishing that he may leave it with a solid rep utation, and that he may advance the honor of his countiy beyond even the hopes of his friends. We are all interested in his fame, for it is now identified with his country. There are nobler ex amples for his emulation than Spain or Carthage. Let him vin dicate the pubhc faith of his countiy, and he shall be hailed in deed as her Saviour, for he will have preserved her honor. Let him instruct the world that the sanctity of treaties is no longer the scom of republics, and he shall then have truly filled the measure of his country's glory and his own. Her history beams with light upon the path of honor and honest fame. There are bright ex amples before him wliich any man may be proud to follow and to emulate ; but the enduring glory of his predecessors-has been won by their inflexible justice and pubhc virtue. " Ex omnibus prozmiis virtutis, amplissimum esse pramium,, gloriam ; esse hanc unam, qua brevitatem vita posteritatis memoria consoleretur ; qua efficerit ut absentes adessemus, mortui viveremus ; hanc denique esse, cujus gradibus etiam homines in calum viderentur ascendere." NOTES. P. 80. Mr. Storrs speaks of the Indians within the States as being 60,000 in number. He doubtless meant the Southern States. The Secretary of War estimates the number in these States to be 75,000. There are probably more than 100,000 east of the Mississippi, and twice as many west of that river, whose condition may be directly or indirectly affected by the Indian bill. P. 88. Mr. .Storrs states, that 12,000,000 of acres have been pur chased by the U. S. for the use of Georgia, since the compact of 1802, and in compliance with that compact. The quantity is much larger than his estimate. By a report of Mr. Calhoun, when Secretary of War, in 1824, the government of the U. S. had then obtained for the use of Georgia, From the Creeks, 14,748,690 From the Cherokees, 1,095,310 15)844,000 From the Creeks, since 1824, all their remaining lands in Georgia, ... 4,083,200 * Acres, 19,927,200 Great tracts of country have been ceded to the United States by the Cherokees, upon which are now established the most populous and flourishing communities of Tennessee and Alabama. Georgia claims about 5,000,000 acres of Cherokee land, as now remaining in the possession ofthe Cherokees. SPEECH OP THE HON. WILLIAM W. ELLSWORTH, REPRESENTATIVE FROM CONNECTICUT, DELIVEREU IN THE HOUSE OF REPRESENTATIVES, SITTING AS IN COMMITTEE OF THE WHOLE, ON THE BILL FOR THE REMOVAL OF THE INDIANS, MONDAY, MAY 17, 1830. Ma. Chairman : I would most cheerfully acquiesce in the proposed appropriation to assist the Indians in their removal, could I believe that this object would be effected in good faith, and according to the unbiased wishes of the Indians. But I do not believe such will be the fact. Whatever gentlemen may say and feel in this house, in the honest expression of their views, I have no doubt that mercenary motives, in some ofthe southern and south-western portions of the country have had, and still have, an important influence upon this measure. It is advocated upon principles at war with our policy towards the Indians ; upon principles which no State in this Union can expect this government to recognise or sanction. By the com pact of 1802 with the State of Georgia, we agreed to extin guish the Indian title to her lands as soon as it could be done " on reasonable terms, and peaceably." I should be glad to unite in any proper measures, as being an amicable and honor able mode of settling questions of grave consideration now urged upon us, and as meeting the wishes of several of the States, who feei their rights, dignity, and welfare, to be involved in the issue. Certainly I shall strive to be faithful to every just expectation of a State ; but we must not be faithless to our engagements. Sir, I have no belief that the bill will bring along with it the proposed and desirable effect ; and, while I am ready to go as far as any gentleman to assist in an honorable remo val of the Indians, I cannot do it under circumstances which admonish me that this bill is but a part of a united effort virtu ally to expel the Indians from their ancient possessions. Some of these circumstances I will lay before the committee. No option is left with the Indians as to their removal, if you pass this bill, consistent with their heretofore acknowledged rights, and such as the faith and honor ofthis country ought to secure to them. Before I mention these circumstances, permit me to call the attention of the committee to the true question in debate. This bill proposes a scheme for the removal of all the Indian tribes on the east of the Mississippi to the western wilderness. 12 134 MR. ELLSWORTH S SPEECH. The sum now to be appropriated, it is admitted, is for a begin ning only. None suppose the whole expense will fall short of three millions, and many think it will be more than quadruple that sum. What is the character of this grand scheme ? Upon what principles is it urged upon us ? It becomes us to examine it narrowly. If it is to operate coercively upon the Indians ; if bribery, corruption and menace are about to make it effectu al, as I verily believe will be the fact, we cannot give the fimds ofthis nation to assist in its accomplishment. The question is not so exactly what is the relation between the States and the Indian tribes, as what is the relation of this government to them. It is not so material what notions Georgia entertains about the original rights of the Indians. She may deny them all, if she pleases, and her advocates may contend that it is now too late to inquire into their rights, as distinct and inde pendent ; but since we are called upon to accomplish their re moval, it is our duty to see that the principles which have hitherto regulated our relations with the Indians are not denied or abandoned. This nation has settled the character of the Indian tribes — it is too late for her to speculate, if she would, on this subject. The whole history of our Indian department, the scores of treaties we have made, and the intercourse law of 1790, and now existing as passed in 1802, establish the great fact, that tins government has held these tribes to be distinct from the States for all national purposes; nor can we now deny it, without the most manifest injustice to the Indians, and the most glaring disregard of our solemn engagements. Let others have such systems as they please — we have one estab lished by the practice of every successive year, resting on the eternal principles of justice, and wrought into all our laws on this subject. And, Sir, even if we could not properly have taken the ground which we did at first, and have since maintain ed, we cannot now deny it, and appropriate our funds, and lend our national arm, to subvert it. We are committed. We have invited the Indians to treat with us — to trust us — to put them selves into our hands — and now, can we betray them ? Can we advance money to carry into effect a system at war with our treaties and our solemn pledges ? This is the ground. And, though I shall investigate first principles a little, I do contend the friends of the Indians need not go beyond the statutes and records of our-own government to learn the line of duty. The advocates of removal tell us we cannot interfere with the internal concerns of a sovereign Slate. The gentlemen from Georgia admonish us, that that State has taken her course, and nothing will divert her ; that she is sovereign, and will do as she pleases ; and they advise us to let her alone. Sir, the difficulty is, she will not let us alone. She says, Give us your money ; pledge the national treasury to remove the Indians within our borders : and all this she demands of us, by trampling under foot the charters of our plighted faith, and changing completely the principles of our relations with the Indians. She asks too much. She asks what honesty requires mr. Ellsworth's speech. 135 us to withhold. I will never give her a farthing upon the prin ciples she assumes — nor can this government, without exciting the just indignation ofthis nation and of mankind. I will now mention some of the circumstances which show the character and object ofthis bill. First, then, the executive, whose opinion and future course of conduct on this subject, it seems, were well known before his election, applauds Georgia for her great forbearance to wards the Indians, and denies their right of self-government and of soil-, except to such a portion as they may happen to be in the actual occupation and enjoyment of. Next, the secretary of war, in his official communications, labors to prove that they have no rights at all, not even to any portion of the soil ; for he asserts they have lost all, and the States have acquired all, by conquest and discovery ; and such has of late become the language of Georgia. She openly de clared, by her legislature, in 1827, " that the State might prop erly take possession of the Cherokee country by force, and that it was owing to her moderation and forbearance that she did not thus take possession." Previous to this declaration, a joint committee ofthe legislature had made a report, in which they say, that the European nations asserted successfully the right of occupying such parts of America as each discovered ; and thereby they established their supreme command over it. Again — " It may be contended, with much plausibility, that there is in these claims more of force than of justice ; but they are claims which have been recognised and admitted by the whole civilized world ; and it is unquestionably true, that, un der such circumstances, force becomes right. Before Georgia became a party to the articles of agreement and cession, (the compact of 1802,) she could rightfully have possessed her self of those lands, either by negotiation with the Indians, or by force; and she had determined, in one ofthe two ways, to do so ; but by this contract she made it the duty ofthe Uni ted States to sustain the expense of obtaining for her the pos session, provided it could be done upon reasonable terms, and by negotiation ; but in case it should be necessary to resort to force, this contract with the United States makes no provision: the consequence is, that Georgia is left untrammelled, and at full liberty to prosecute her rights, in that point of view, accord ing to her discretion, and as though no such contract had been made." Truly this is logic with a vengeance. And we are called upon to sanction these abominable doctrines. They lie, avowedly, at the basis of this fearful measure. May the nation al council pause upon the brink of this precipice, before every thing is lost in the chasm below. Another circumstance of admonition is, that an honorable committee of this house have openly declared, in their report made to sustain this bill, that the Indians are mere tenants at will, strictly having no rights to territory or self-government ; and that the red men lie at the mercy of the whites, by reason of discovery, conquest, civilization, greater kno wledge'and pow~ 136 mr. Ellsworth's speech. er, or Christianity. This is their language on page 5th : " But in all the acts, first of the colonies, and afterwards ofthe States, the fundamental principle, that the Indians had no rights by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned either expressly or by implication." So again: "No respectable jurist has ever gravely contended that the right of the Indians to hold their reserved lands could be supported in the courts ofthe country upon any other ground than the grant or permission of the sovereignty or State in which such lauds lie." This report goes farther than I had supposed intelligent men could go. It really leaves nothing to the Indian. The very soil on which he lives, and where his ancestors lived before him, is none of his, but belongs to. the white man. Nor ain I less alarmed to see it so seriously asserted by the committee, that all our Indian treaties are a mere legislative pro ceeding, and, as such, alterable at our pleasure. And I am by no means certain that the committee do not mean to say, that our treaties and legislative enactments, as far as they rest on any rights ofthe Indians, are unconstitutional and void. Page 8th, I read : " These treaties were but a mode of government, and a substitute for ordinary legislation, which were from time to time dispensed with, in regard to those tribes which continued in any ofthe colonies or States until they became enclosed by the white population." If these treaties are not binding to their full ex tent, then the great men who established the government, and for years administered it — all the Presidents of this Union, and their associates, including, too, our present chief magistrate — have been in error, and made treaties and laws without right and against right. I have a further reason for fearing the Indians are to be ex pelled. While such sentiments are entertained in the cabinet, certain States, for the first time, and just at this crisis, put the finishing stroke to this grand scheme of removal. They delib erately pass laws annihilating the independent existence of the tribes — abrogating all their customs, decrees, rules and obliga tions — excluding the superintendence of Congress — opening the whole country of the Indians to the whites, and, in short, taking from them their own government, and excluding them from a participation in any other; and all this upon a claim of right, while the single object is to coerce their removal. Now, sir, when I find such sentiments prevailing in certain States, and in the cabinet, and that the same are urged upon us by the committee, to induce the house to pass this bill, l'am alarmed for the poor and helpless Indian. I feel that power is arrayed against right ; and that the voluntary, unbiased expres sion ofthe Indians, as to their removal, is not likely to be had. Besides, sir, we have the protest of the Indians reiterated up on us. They do not wish to remove. For years have we been laboring to induce them to remove — have made them liberal offers — urged them to go and see the promised land tendered to them ; but it is all in vain. Like others, they prefer to live and die where their fathers lived and died, and refuse absolutely to mr. Ellsworth's speech. 137 remove. And, to make the last and final attempt, this great and mighty' government has insidiously sent in its agents, generals Coffee and Carroll, secretly as their friends, to advise them — " to try the chiefs alone" — " to move upon them in the line of their prejudices, and to give them rewards." The letters of instruc tion to these agents of government we have on our tables. They are a stain upon our national character. These fruitless at tempts to induce the Indians to go, prove, beyond all question, that they never will remove, if left to act their own pleasure. I cannot help believing that much is meant by this bill of ap propriations. The Indians will feel that they must go, or be abandoned to their fate ; and the world will justify that feeling. They must and they will go. While the Indians are thus abandoned by the U. States, press ed by the States in which they live, and denied all right of terri tory and self-government, let us not delude ourselves with talking about their voluntary and cheerful removal, but rather let us meet the matter fairly, and make out the position, that this na tion, or the individual States of it, have a right, before God and man, to send the Indians even to the Pacific ocean, if they be in the way of our growth and expansion. Let me now ask the attention of the committee to the great questions — What are the rights of the Indians, and what is our duty to them ? It is not at all improbable that we shall answer these ques tions differently from what the Indians would. We may adopt a course of reasoning which they would deny, and one which we might perhaps see differently if the Indians were the stronger party. But I trust that we shall not forget that truth and justice are always the same, and that towards the Indians we ought to act upon the most noble, generous, and humane principles. The Indians declare to us, they are to be sacrificed to the mercenary views ofthe whites. They come in a body of some thousands, imploring our interposition. They recite our trea ties, in which they have given themselves into our arms for pro tection, and in wliich we have most solemnly received them, and pledged ourselves to protect them from every power whatever. Sir, it is becoming in us to look at this matter fairly and fully, and see where duty lies. What, then, I ask, are the rights of the Indians ? I maintain that the complainants have the right of territory and self-gov ernment, and that these have ever been accorded to them by the United States. Suppose, sir, we were now, for the first time, to learn that there was a tribe of Indians in Georgia, the Cherokees, and that, discovering them, we should learn they had lived upon their present territory, and their ancestors before them, from a period beyond all memory or history. Suppose we should find them to be owners of a tract of land containing 8,000,000 of acres — possessing a government of laws, a public treasury, schools and religious institutions, and made up, to a great extent, of fanners and mechanics, advancing in knowledge,, wealth, virtue, and 12* 138 mr. Ellsworth's speech. power. Suppose all this, (and I do not speak of an imaginary people,) what should we say of their rights as a nation ? We could not possibly differ. Writers on the law of nature and of nations, politicians and moralists of every school and every age, would agree that they had the most perfect and absolute right to territory and government. And let me stop here to remark that the Indian right to territory is no better than his right to gov ernment. Every consideration can be urged in favor of one right that can be urged in favor ofthe other. They must stand or fall together. I do not deny that the right of soil and juris diction may be divided. But they are not in this case. If the Indian tribes have a right to live upon their possessions, they have a right to live there as they please, provided they do not annoy us. Now, I ask gentlemen if the rights supposed are net really the present rights of the Indians ? Here they are^ here they ever have been ; and here they are in the condition in which I have supposed. In 1826, the Cherokees were the owners of 2,943 ploughs, 172 wagons, 2,500 sheep, 7,600 horses, 22,000 cattle, 46,000 swine. Have they done any thing to forfeit their rights? If so, when? how? by what act? by what event? True we have gathered round them, while they have been re ceding to their present narrow limits, and advancing to their present condition of knowledge and improvement ; (and had they not a right so to advance ?) When we have taken their lands, we have purchased them, and marked distinctly the boundaries of what we left. Now, I again ask gentlemen when the Indi ans lost their rights? The whites may have made maps and charts, and drawn lines ; but what have the Indians done ? — They are the creatures of the same God with ourselves. He-lias made them, and placed them where they are. He it was who gave them their land to dwell in. Sir, I declare there is no right in us to take it or their government from them. Power may do it, but the God of heaven will not sanction it. Self-de fence does not require it ; nor does discovery, conquest, civiliza tion or Christianity warrant it. Let us look for a moment at these several grounds of title. What, sir, is the right of discovery ? This right is often spoken of by those who are adverse to the claims of the Indians. Among the nations of Europe, it seems to be a principle of the law of nations', that, if the subjects of any king discover and en ter upon new and unknown lands, they become a part of the dominions of that king. There is much that is arbitrary and fanciful about this right. But, be it reasonable or unreasonable, it is a mere political arrangement among nations, established to regulate their own conduct among themselves, and has nothing to do with the prior possessors of the land. I can hardly con ceive how sailing along our coast for a few miles, should, in the first instance, have given a right to North America. But be it that it does ; how are the Indians affected by that considera tion ? Suppose even the rights ofthe Indians ought, upon gen eral principles, to be limited and restricted by the settlements of mr. Ellsworth's speech. 139 civilized and Christian people ; will any contend that the Cher okees, for instance, ought to be driven into narrower limits than their present possessions? If, because we are enlightened and civilized, by discovering this country we have acquired a right to drive off the Indians, or wrest from them their government, (which I consider the same thing,) then we may, if it becomes necessary, in order to secure our further advancement in knowl edge and virtue, drive them into the western ocean, or even put them to death. Certainly nothing of this kind is necessary. Indeed, I believe the Indiuns, by bemg established on the west side ofthe Mississippi, will become a greater obstacle to our na tional growth and prosperity, than if left as they now are. Not 25 years will pass before the Indian, on those rich lands, will be in some white man's way. It may be true that the European nations, the English, French, Spanish and Portuguese, have partitioned this continent upon the principle of title by first discovery and possession. But in doing this, they had infinite difficulty and wars ; nor did they then do it with reference to the Indians, but only to govern their own conduct, and to avoid further collision and war. Has it not been the established principle of this government to recognise the Indian title ? Has it ever taken their land, upon this title by discovery, without their consent, for an agreed consideration ? Sir, do we not every year acknowledge their title, by making treaties with them, and paying annuities ? We pay, I think, more than $200,000 annually to the Indians in annuities. How can we, the United Spates, deny a right which we have recogni sed, aye, guarantied, thousands of times? We are estopped. We are convicted by our own conduct from the very beginning. The history of our government will rise up in judgment against us. Sir, the Indians should find by experience, that we are honest and faithful to our engagements, and that we are not about to change our whole course of intercourse with them. They know nothing about this European notion of title by first discovery. They have always occupied their present possessions. The In dian finds that the great Being who made him has given him a place on the earth, and he argues that some reasonable portion of it, on which he was born, and has ever lived, must be his, and that that portion of it cannot be wrested from him by another's casting his eye or placing his foot upon it. Thus much for the right of discovery. As to the right of conquest, I imagine even less can be said. Victory and captivity subject the vanquished and his property to the pleasure of the victor. But then the right of claiming the country of another nation, and of exercising government over it, depends upon the fact of a victorious conflict — taking posses sion as conquerors, instituting a government as such, and dri ving out the enemy or receiving him as a dependent subject. But none of all this, surely, is true of these southern tribes. All the warslietween them and us have terminated in formal trea ties, leaving them in possession of their territory, distinctly ac knowledging their independent existence, and guarantying to 140 mr. Ellsworth's speech. them their possessions. Treaties to this effect are numerous, and, I trust, too famihar to this house to need to be read. Besides, so far as the Indians have lost their country by conquest, the United States have acquired it, and not the States. The States have nev er conquered their country, or taken- possession of it, or abolished their laws, and instituted a government of their own." The wars have been conducted by the nation ; but she "has acknowledged their independence in the numerous treaties of peace already mentioned. Nor has she ever taken any thing from them, not even a right of passage through their territory, without their con sent and an equivalent. It is forever too late to talk of conquest. Great Britain has not more fully acknowledged our independence than have we that of the Indians. With the Cherokees we have made sixteen treaties. They all begin and end with this senti ment And even if these treaties were made without authority, (which I by no means admit,) they negate all right or claim by con quest Before the union of these States, Georgia herself, by more than one treaty, most fully acknowledged the rights ofthe Indians. It is enough that she never did take the attitude of a conqueror. [See the treaty made at Dewitt's Corner, in 1777.] If, then, Georgia and the other States have no right, directly or indirecdy, to expel these Indians — no right to their government r^r their territory by discovery, or conquest, or civilization, or Chrisn- anity, when and where have they this right at all ? True, they may not wish to have the Indians within their hmits ; but who put them there ? God. How long have they been there ? Al ways. Nor is it their fault that the whites have gathered around them, or that it so happens that they fall within the chartered lim its of a State. This is no act of theirs, whereby they forfeit their rights ; nor do they admit, nor have they at any time, that they are not independent and sovereign. They have granted no charters, and drawn no fines, except as they have sold to the whites. I have thus far considered what are the rights of these Indians, independent of treaties and legislation, on our part ; but I will now call the attention of the committee to the pohtical condition in wliich this government has considered them^to stand, and I af firm we shall find eveiy thing to confirm the opinion already ad vanced. No position is susceptible of better proof. From the first union among the States, our relations with the Indian tribes have been conducted by the national government As our defence in case of war with them required the general arm and common funds, the nation was interested to superintend all intercourse with them — in order to avoid the causes of war, as well as to save the Indians from the intrigues of individuals, and from alliances with foreign powers. These Indians were likewise very formidable and dangerous. Under the Old Congress arid the Confederation, all our intercourse with the Indians was in ourna- ' tional character. As such, we made treaties with them, offensive and defensive, induced them to forego all connexion with other nations, and to commit themselves and their concerns into our hands. As a nation, too, from the first, this government has ad mitted their independent existence, and then; full right to the soil. mr. Ellsworth's speech. 141 We have never usurped their rights, but have maintained a friend ly connexion with them, and purchased their lands when we wanted them and they would sell. In 1785, we made our first treaty with the Cherokees. In the treaty we agreed that they should have a delegate in Congress. The treaty begins thus : " The Commissioners Plenipotentiary of the United States of America, in Congress assembled, give peace to all the Cherokees, and receive them into the favor and protec tion of the United States of America, on the following conditions :" Art. 3. The said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protec tion of the United States of America, and of no other sovereign what ever. Art. 9. For the benefit and comfort of the Indians, and for the-prer vention of injuries or oppressions on the part of the citizens or In dians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper. Art. 12. That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to Con gress. Art. 13. The hatchet shall be forever buried ; and the peace given by the United States, and friendship re-established between the said States, on the one part, and all the Cherokees on the other, shall be universal : and the contracting parties shall use their utmost en deavors to maintain the peace given as aforesaid and friendship re established. fl„ The same provisions and mutual stipulations are to be found in the treaty of Holston, made in the year 1791, and so in the sub sequent treaties down to the present day. Can we need other evidence that our relation to the Indians has been national, exclusively, from the first ? The States and individuals have been prohibited the purchase of Indian land. All our dealing with the Indian tribes bears but one interpreta tion — that of two distinct parties treating in their national char acter. Sir, at the time when these States established the present gov ernment, how did they find these Indian tribes, and our relations with them ? They found — 1st. Treaties of friendship and alliance existing between them and us, containing reciprocal obhgatkms and guaranties. 2d. They found their national domain marked out and defined. 3d. They found them nations in claim, in enjoyment, and right, acknowledging no dependence except such as was defined by treaty, and such as was perfectly compatible with retaining the right of ter ritory and government. 4th. They found that, under existing treaties, the United States had excluded the whites from the Indian territory, and had regu lated all trade and intercourse with them, as it is now done. The Ohio river was made to divide them into two departments, the 142 mr. Ellsworth's speech. north and the south. Before 1787, there had been three depart ments.' The Old Congress, in 1787, appropriated $34,000 for the purpose of making treaties with the Indians. In this state of things, the present government was formed ; and to it is given the power of regulating commerce with foreign nations, between the States, and with the Indian tribes ; the restric tion hi the eighth aiticle ofthe confederation being omitted. In 1790, the second session of the first Congress, this power was carried into effect, by first appropriating $20,000 to make treaties. And in the same session they passed the act to regulate trade and intercourse with the Indian tribes, which expired in 1793, and has been renewed from time to time, until, in 1802, it was permanently enacted, substantially as it now is. The treaties with the Cherokees, and the provisions of the intercourse -law of 1802, all jiow in force, are substantially the same. I ask the at tention of the committee to them very particularly, for I hold them to be indubitable evidence ofthe national character in wliich we acted, utterly inconsistent with the assumed jurisdiction Of Geor gia, and such as imperiously demand of us to resist the claim of Georgia, or abandon our treaties and our laws. 1st. The boundaries of the Indian country are expressly, by treaty and legislative enactment, recognised and established, and the President is directed to ascertain them. 2d. By treaty and legislative enactment, the Indians cannot sell any of their lands to third persons or foreign States. 3d. By act of Congress, no person can enter the Indian territory to trade, without hcense, and giving bond of $1000, with surety ; nor can a foreigner ever obtain hcense at all. 4th. No person shall settle in the Indian territory, nor shall sur vey or mark out the same ; and if any one does, the President may remove him by military force. 5th. No person shall purchase of the Indians clothing, guns, or implements of husbandly. 6th. Every white man found over the line, may be seized by military force, and carried into any one of three adjoining States, and tried. 7th. So he may be seized and tried wherever he may be found. 8th. All ciimes committed by Indians against whites shall be tiled hi the United States courts. 9th. The tribes first, and government finally, are liable for all depredations by the Indians, demand being first made on the su perintendent. 10th. Indian agents are located among the tribes, and they only can designate places of trade. 11th. T8fe President may regulate and forbid the sale of spirit uous liquor among the Indians. 12th. The President may cause them to be furnished with do mestic animals and implements of husbandry, and with goods and money. 13th. To prevent their further decline, the President may ap point persons to instruct them in agriculture and knowledge, and the sum of $10,000 is appropriated annually^ therefor. mr. Ellsworth's speech. 143 Now, Georgia has assumed the entire civil and criminal juris diction over all this Indian territory within her limits, as have Ala bama and Mississippi ; and they claim that, let. their laws be what they may, the United States cannot interpose ; no, not if they pass a law to put every man of them to death. These States have driven the United States out of their State limits, and now deny their right, by treaty or legislation, to interfere in the internal and domestic concerns of the Indians. At one blow our treaties and laws fall to the ground. And we are to sanction and sustain these measures by appropriating the funds of the government ! I ask this house to consider the character of the laws Of Georgia, and say if they are willing to aid in the execution of her designs. But, sir, aside from the injustice, upon general principles, of re moving the Indians, I ask if this government is not bound by trea ties to protect them against eveiy body. Congress, under the power of the Constitution, has repeatedly entered into compact with the Indians. 1st. It has made appropriations beforehand, to enable the Pres ident to make treaties. It did this at the first session, appropriat ing $20,000. It has done it eveiy year since ; and most of the treaties we expressly enumerated and approved in the act of 1826. The treaty for the removal of the Creeks was made by the Presi dent, but is, I trust, binding on the countiy. But, sir, if Congress had not expressly directed the President to make treaties, and had not ratified his acts after they were done, he has the power given him in the Constitution. We have been making treaties with the Indians from the first. We know that Washington, Adams, and eveiy President since, have acted upon the idea that/this government possessed the power. By virtue of these treaties, we have obtained the .country of the Indians — that which we never claimed as ours — and for it we have stipulated to pay annuities. Are all these tilings mere waste paper? Can this government say we have no power to treat, while we are con stantly doing it, and now hold much of their land under treaties ? But, sir, let us not forget, that, by treating with the Indians, we have induced them to throw themselves into our arms, and to commit themselves to us. Take, as a just illustration of this sen timent, the first treaty of the Indians under the Constitution. They abjure every other power, State, and individuals ; commit their country and their affairs to the United States, exclusively, and with us enter into treaties of alliance, offensive and defensive. So, too, we receive them ; guaranty their country ; define and bound it ; receive a part of it ourselves ; and, by legislative en actments, regulate their trade, and exclude all persons from their territory, and send them implements for the purposes of hus bandry. Can we now say we have no pqwer, and cannot redeem our pledge. I hope this government will not stoop to such infa my and perfidy. In 1819, Congress passed a law to appropriate $10,000 annual ly, to co-operate with benevolent societies in civilizing and re claiming the Indians — ay, to co-operate with the " fanatics of the north," as the gentleman from Georgia calls them. The Choc- 144 mr. Ellsworth's speech. taws have appropriated $12,000 for thirty years, annually, and the Chickasaws $30,000 — and now, since some of them are begin ning to be what we have long labored to make them, we are about to abandon them forever. If, sir, our treaties or laws are of any force, how can the acts of Georgia, Mississippi, and Alabama stand ? One or the other of these powers, only, can extend its jurisdiction over the Indians. It has been said that the Indians in the Southern States will soon become extinct — that humanity dictates their removal. Sir, why not leave the Indians to judge for themselves in this matter ? They have the deepest interest hi it, and they are sufficiently in telligent to discover what is best for themselves. Sir, I confess I do not like this parade of humanity. Nor, if there be a willing ness on the part of the Indians, would Georgia need to pass her extraordinary laws. But, sir, who constituted us judges over them ? We may as well set ourselves up as judges for any other people — for Spain or France, for instance, and force upon them a republican government, if we thought it would be better for them. How comes it to pass that some of the tribes, the Cherokees es pecially, are increasing in population and wealth ? Does this look like their extinction ? When did Georgia, permit me to ask, first feel this impulse of humanity for the Cherokees ? Not until they began to be a growing tribe. If she wishes to save the Indian, why does she deny him the benefit and protection of her laws ? Why does she leave him to the merciless rapacity of his white • neighbors? But it is said the Cherokees and other tribes are willing to re move. What, then, mean these memorials of touching entreaty on our tables, signed by some thousands of them, begging that they may not be forced to leave their country ? Why has gov ernment sent in among them secret agents to advise them to go ? Why have these States passed their unequal and unprotecting laws ? Does this look like a wish on the part of the Cherokees to remove ? And why, let me ask, have they so long refused the offers made them by the government ? But it is said, The chiefs ! the chiefs ! they are the mischief-makers — they advise the In dians to stay. And has it come to this, that we are to find fault with the poor Indian, because he regards the advice of his chief and guardian ? Do not we and other nations the same ? Shall we take the ground that the Indians are willing to remove be cause we, in our humanity, think they ought to be ? They, as a nation and as individuals, declare they are not willing to remove ; and, among other tilings, they give, as a reason for their unwil lingness, that they have examined and do not like the countiy be yond the Mississippi — that they cannot be happy and secure there. And may they not judge for themselves ? Sir, there are many considerations pertaining to this great sub ject, which I must leave to other and abler hands. I will close my jemarks with noticmg one objection to the Indians remaining and establishing a government where they are. It is said, and it is so declared in the President's message, that it is against the theory and Constitution of our government, that the Indians should have MR. ELLSWORTHS SPEECH. 145 a distinct existence in the bosom of a State. My answer is, that these southern tribes have always had a government — they are exercising no new power — it is not a new nation, an " imperium in imperio" springing up. They have, it is true, within a few years, new modelled their government, in imitation of ours, and infused into it something of our spirit and principles ; but they as sume no new authority. The whites have estabhshed themselves around the Indians, and it is not a new power springmg up and planting itself in a sovereign State. The objection takes for grant ed the whole matter in dispute. If my views are right, the In dians can urge this objection with more force than we can. In most of the States, the Indians have melted away, and thereby lost the power of self-government and distinct existence ; but this is not true of the Cherokees and other southern tribes, who have claimed and exercised the power of self-government ; and, for aught I see, may do it with as much propriety as ourselves. JSir, I will close with saying, that this emigration of 60,000 Indians, of different tribes, to a new country, now occupied more or less with hostile tribes, is an experiment of such serious magnitude, that we ought not to force it upon them, but leave it really to their free choice. And who, Sir, can tell us of the expense of this remov al ? We are first to purchase the countiy they leave ; then to re move them ; to conquer or purchase the countiy to be assigned them, and, after this, to sustain and defend them for all future thne. How many millions will this cost ? Mr. Chairman, we must be just and faithful to our treaties. We shall not stand justified before the world in taking any step which shall lead to oppression. The eyes of the world, as well as of this nation, are upon us. I conjure this house not to stain the page of our history with national shame, cruelty, and perfidy. Extracts fkom an Act of Georgia, passed Dec. 19, 1829, to extend the liws of that state over the territory of the Cherokee Indians. Sec. 6. And be it further enacted, That all the laws, both civil an^ criminal, of this State, be, and the same are hereby, extended over said portions, of territory, respectively ; and all persons whatever, re siding within the same, shall, after the first day of June next, be sub ject and liable to the operation of said laws, in the same manner as other citizens of this State or the citizens of said counties, respective ly ; and all writs and processes whatever, issued by the courts, or of ficers of said courts, shall extend over, and operate on, the portions of territory hereby added to the same, respectively. Sec. 7. And be it further enacted, That, after the first day of June next, all laws, ordinances, orders and regulations, of any kind what ever made, passed or enacted, by the Cherokee Indians, either in general council or in any other way whatever, or by any authority 6 13 146 mr. Ellsworth's speech. whatever, of said tribe, be, and the same are hereby declared to be, null and void, and of no effect, as if the same had never existed ; and, in all cases of indictment, or civil suits, it shall not be lawful for the defendant to justify under any of said laws, ordinances, orders, or regulations ; nor shall the courts of this State permit the same to be given in evidence on the trial of any suit whatever. Sec. 8. And be it further enacted, That it shall not be lawful for any person or body of persons, by arbitrary power, or' by virtue of any pre tended rule, ordinance, law or custom, of said Cherokee nation, to prevent, by threats, menaces, or other means to endeavor to prevent, any Indian of said nation, residing within the chartered limits of this State, from enrolling as an emigrant, or actually emigrating, or re moving from said nation ; nor shall it be lawful for any person or body of persons, by arbitrary power, or by virtue of any pretended rule, ordinance, law or custom, of said nation, to punish in any man ner, or to molest either the person or property, or to abridge the rights or privileges of any Indian for enrolling his or her name as an emi grant, or for emigrating, or intending to emigrate, from said nation. Sec. 9. And be it further enacted, That any person or body of per sons, offending against the provisions of the foregoing section, shall be guilty of a high misdemeanor, subject to indictment, and, on con viction, shall be punished by confinement in the common jiaol of any county ofthis State, or by confinement at hard labor in the peniten tiary, for a term not exceeding four years, at the discretion of the court. Sec. 10. And be it further enacted, That it shall not be lawful for any person or body of persons, by arbitrary power,- or under color of any pretended rule, ordinance, law, or custom, of said nation, to pre vent, or offer to prevent, or deter any Indian, head man, chief, or war rior, of said nation, residing within the chartered limits ofthis State, from selling or ceding to the United States, for the use of the State of Georgia, the whole or any part of said territory, or to prevent, or offer to prevent, any Indian, head man, chief, or warrior, of said nation, resid ing as aforesaid, from meeting in council, or treaty, any commissioner or commissioners on the part of the United States, for any purpose whatever. Sec. 11. And be it further enacted, That any person or body of per sons, offending against the provisions of the foregoing section, shall be guilty of a high misdemeanor, subject to indictment, and, on con viction, shall be confined at hard labor in the penitentiary, for not less than four, nor longer than six years; at the discretion of the court. SPEECH OF THE HON. GEORGE EVANS, REPRESENTATIVE FROM MAINE, DELIVERED IN THE HOUSE OF REPRESENTATIVES, SITTING AS IN COMMITTEE OF THE WHOLE, ON THE BILL FOR REMOVING THE INDIANS, TUESDAY, MAY 18, 1830. Mr. Chairman : The object of the bill under consideration has been fklly stated by the chairman of the committee on In dian affairs, (Mr. Bell,) and by the gentlemen from Georgia, (Messrs. Lumpkin and Foster,) who have preceded me in this debate. It proposes, as they have correctly said, an appropria tion of money to be expended by the President, in effecting the removal of the Indians now residing within the limits of the States and Territories, to a new residence west of the Missis sippi. We have been told, that this has long been the settled policy of the government ; and gentlemen express much sur prise that any opposition should now exist, to the accomplish ment of an object so often sought, and represented as highly desirable. Sir, if this has been the settled policy ofthe govern ment, which I shall not now stop to consider, there has been also another policy, another practice, pursued towards the Indian tribes, which Providence has cast upon our care, that seems, at the present juncture, to be wholly forgotten. It is this — in all our relations with them, to respect their rights of soil and of jurisdiction— to treat with them as free and sovereign communities. We have uniformly acknowledged the binding force of our engagements with them, and we have promised that we would be faithful and true in the performance of all our stipulations. We have never attempted to drive them from their ancient possessions, nor to permit others to do so, by withholding our promised protection. We have never en deavored to deceive them as to the nature and extent of their rights, nor to intimidate them into an acquiescence with our wishes. Is such the language now addressed to them ? Is such the course now about to be pursued ? Sir, when gentlemen refer us to the past policy of the gov ernment, and ask us still to adhere to it, I tell them to take the whole policy together. Hold out as many inducements as you please, to persuade the Indian tribes to exchange their country for another beyond the Mississippi, but, at the same time, assure them, that, until they freely and voluntarily consent to remove, they shall be protected in the possession and enjoyment of all f48 MR. EVANS S SPEECH. the rights which they have immemorially possessed, and which we have recognised and solemnly guarantied to them in exist ing treaties. But the gentlemen have said, and reiterated, that the bill contemplates only the voluntary removal of the In dians ; and they are astonished that the proposal should meet with any opposition. Sir, have they yet to learn that there is no opposition to their free, unconstrained, voluntary removal? Has any man upon this floor, or in this Congress, opposed it? Do the numerous memorials, which weigh down your table, oppose it ? The honorable member from Tennessee, (Mr. Bell,) to sustain his assertion, that the public mind had been pervert ed, deceived and misled upon this subject, said, that the uni form language of all the petitions was, that the Indians might not be coerced and compelled to remove ; that the public faith might be kept and redeemed. Now, Sir, is there any remon strance against the voluntary removal of these tribes ? Is there an objection to it from any quarter, unless it is to be accom plished by coercion, or force, or withholding from them that protection, which we are bound to afford ? I know of none, and I tell the gentlemen, once for all, that the only opposition is, to a forced, constrained, compulsory removal. The gentleman from Georgia, who first spoke upon this sub ject, (Mr. Lumpkin,) has gone farther, and discovered the sources of the opposition, and the motives from which it springs. He has told us, that it has its origin among enthusi asts in the northern States, who, under the pretence of philan thropy and benevolence, have acquired a control over the In dian councils — have sent missionaries among them, who "are well paid for their labors of love," and who are actuated by a sordid desire for " Indian annuities." The gentleman has re proached the memorialists who have addressed us, as " inter- meddlers," and " zealots," and expresses his strong disappro bation of appealing to religious associations, or intermingling religious considerations in aid of political and public objects. Sir, I am not about to vindicate the policy which the gentle man has reprobated. The occasion does not call for it. But does he know upon whom his reproaches fall ? Does he re member the first pamphlet which was laid upon our table, in reference to this subject ? It is entitled " Proceedings of the Indian Board in the City of New York ;" and I call the atten tion of the gentleman to it, if he wishes to ascertain who are endeavoring to enlist religious societies and associations in the concerns of government. What was the origin ofthis " Indian Board," and of whom is it composed? It originated with the government. The superintendent of Indian affairs, acting un der the auspices and by the direction ofthe department of war, opened a correspondence with divines in that city. He invited the formation of the society for the purpose of aiding the ob jects of government — he was sent on to deliver an address ex planatory of the purposes of the administration, and to assist in the establishment of the association. It was formed, and is composed, chiefly, of religious men, who have solely in view, MR. EVANS'S SPEECH. 149 I doubt not, the benefit and preservation of the Indians, and have been made to believe that humanity requires their remo val. Among these proceedings, I find also a letter written by the superintendent, under the direction of the department of war, to a gentleman in Boston, (J. Evarts, Esq.) upon the same subject — disclosing the views of the government, and soliciting his attention to the condition of the Indians, and inviting his co-operation in measures calculated to improve their situation. The gentleman from Georgia has alluded to a series of letters with the signature of William Penn, and has denounced the author as an " intermeddler" in matters which does not concern him, and a " zealot," intruding his opinions upon this house, and upon the country. Now, Sir, in attributing these letters to the gentleman I have already adverted to, (Mr. Evarts,) I disclaim all knowledge ofthe fact that is not common to every member of the house. I know him only as possessing a repu tation for intelligence, philanthropy,' benevolence and untiring zeal in the promotion of human happiness, which any one upon this floor might be proud to possess. Is he an intermeddler? Has he obtruded his opinions upon this subject? Sir, was he not invited and solicited to its consideration ? He was ; and he did consider and investigate, and has given the result of his researches and reflections. What was he to do ? Hold his opinions in subserviency to the will of the government? Do gentlemen forget in what age and in what country we live ? Are we retrograding, while the spirit of free inquiry and unre strained opinion is pushing its onward progress, even under monarchies and despotisms ? Is it in this country only to be met with checks and rebukes? Sir, have the. free citizens of this nation no right to investigate subjects so highly interesting to our national prosperity and character, and to form opinions, except in accordance with the views of government ? The gentleman regards it perfectly proper and correct to form re ligious associations, and issue pamphlets even in the northern States, when the object is in aid of his designs. But when a sense of right, and justice, and humanity, leads to a different conclusion, then the gentleman can hardly find terms strong enough to express his abhorrence of intermingling religious considerations with political movements. Sir, I wish gentle men would fairly meet and answer the arguments which have been addressed to us, and not content themselves with the use of harsh epithets, and the imputation of base motives. When was this complaint about enthusiasm, and mixing re ligion with politics, first heard of? Missionary establishments had long existed among the Indians, with the approbation and by the aid of government. Their object was to meliorate the condition, and elevate the character of these tribes, thereby rendering them better neighbors to Georgia, and essentially promoting her interests. Not a syllable of complaint was heard; Georgia was perfectly satisfied, and the other States were left at full liberty to send their missionaries, and expend their funds in improving the Indians within her border. But 13* 150 mr. evans's speech. when a new crisis has arisen, and the claim of these Indians to their own lands has come in question, then, if they are found not to coincide in the schemes of Georgia and of the adminis tration, it is all "enthusiasm," fanaticism, "sordid interest," " selfishness, delusion, hypocrisy." I do not know, Sir, that it is necessary for me, or for any one, to stand here in vindication of the motives of those intelligent and estimable men, who have devoted time and treasure in the benevolent purpose of converting the Indians to civilization and Christianity — who have established schools and churches, and have been the means of their improvement and advance ment in the arts of social life. The country will do justice to their motives and their actions. It is one thing to make an impeachment, but quite another thing to sustain it. The gentle man has been liberal in accusations of the most odious com plexion — and by what are they sustained ? By that gentle man's opinion, and by nothing else — he brings no facts to cor roborate it ; and he must pardon me if I decline to adopt his conjectures, or to regulate my action in any degree upon as sumptions, for which I discover no foundation. But the gentleman inquires why any opposition should be made to the bill, which contemplates only the voluntary remo val of the Indians ; and he complains of great misrepresenta tion, on the part of those who oppose it, because they hold out the idea that force is to be used; while he strenuously denies that such a purpose is cherished in any quarter. Now, Sir, if the gentleman had confined his denial to the intentions of the government of the United States, it is very possible he may be correct. I do not know that the administration means to em ploy any force ; but if that gentleman meant to assert that the Indians within the limits of Georgia are not to be operated upon in a compulsory manner, from some other quarter, I do not assent to his position. I believe they are. It may not, to be sure, be by an army in the field, advancing to the sound of drum, with banners displayed, to drive them from their homes, at the point of the bayonet. But, Sir, is there no compulsion except military compulsion ? Can men be coerced by nothing but guns and bayonets ? I say that those Indians are not to be left in circumstances, where they can act in an unconstrained and voluntary manner. And when the gentleman inquires why we oppose the bill, I tell him, because it does not provide for the exigency of the case. It does not provide for the secu rity and protection of the Indians in their possessions and rights. It does not answer then- demands upon us. Though this bill professes in itself nothing hostile, yet, if its effect will be to leave the Indians in circumstances where they can make but one choice, then it is clear that they are compelled. For what is compulsion but placing men in circumstances where they have no alternative left them ? The gentleman affects to be greatly amazed that we do not at once assent to his bill. But supposing that the bill shall pass, and the Indians shall not choose to leave their homes, I ask the gentleman, Will they be MR. EVANS'S SPEECH. 151 left in the same situation in which they have hitherto been placed ? Will they be permitted to enjoy the undisturbed pos session of their soil and jurisdiction? If so, and no external bias or oppression is to be brought to bear upon them, and they shall be left perfectly free and independent, as they were left when previous laws have been passed, relating to the removal, to which the gentleman has referred, then I am content. We have not a word to say. But it is not so ; and the gentleman knows it is not so. He says no force is to be applied. Oh no. No force. Only the laws of Georgia are to be extended over them ! Their ancient customs, laws, usages, are to be abolish ed — their council fires are to be extinguished— their existence as a political community to be annihilated. Sir, in what manner has this subject been brought before us ? The President, to be sure, .has called our attention to it in his message, and recommends the measure proposed in this bill. But, beside this, we have urgent memorials from the Creeks and Cherokees, reminding- us of our treaties and our engagements to them, and demanding the fulfilment of those stipulations. What answer do we propose to give ? They ask, Will you perform your engagements ? We reply, We will help you to remove farther into the wilderness. Is this such a reply as we are bound to give ? They tell us they wish to remain, aud to be protected, where they now are ; and I object to the bill, because it does not furnish this protection. For what pur pose does Georgia extend her laws over these Indians, but for compelling them to remove ? to enable her to get possession ofthe land? What does Georgia gain by legislating over these Indians, unless it be their lands ? We all know the nature of the claim which Georgia sets up — that the soil of the Indian country belongs to'her — that its jurisdiction is in lier — that the Indians are tenants at her will, whom she may at any time re move — that, before the compact of 1802, she had a right at any time to take the land by force, and that she has hitherto for borne only because the United States had engaged to extin guish the Indian titles for her. She says, expressly, " that the land is hers, and she will have it," but that she will not resort to violence " until other means have failed." Other means then, it seems, are first to be tried ; and, if they fail, the obvious consequence is, that she will resort to violence. Now, what are these other means? The gentleman from Georgia has told us, that, after having long exercised great forbearance, Georgia has at length caught a gleam of hope from the elevation of our present chief magistrate, and the recognition by him of her long delayed rights. Give me leave to tell the gentleman, that the President has never recognised the rights which Georgia claims, unless the right of jurisdiction, which the President admits to be in Georgia, is equivalent to the right of soil, which Georgia claims — unless it gives, also, a title to the land ; for this she is to get by violence, if other means fail. [Here Mr. Lumpkin interposed, and denied that he had ever said that Georgia meant to resort to violence in any case.] 152 mr. evans's speech. Sir, I did not charge this language upon that gentleman ; he is not authorized to speak as to what Georgia will or will not do. The language I have cited, and the principles avowed, are to be found in a report and resolutions adopted by the Legislature of that State in 1827 ; they are the solemn decla rations by the State of the policy which she means to pursue. The gentleman said, to be sure, that perhaps the language of that report was too strong ; and probably the State of Georgia will not say the same thing now. Why? Because she feels sure of getting the land without violence. Other means are in prog ress which must be successful. Is it not apparent that the object of extending her laws over the Indians is to drive them across the Mississippi ; and now they tell us that no compul sion is contemplated. Sir, if compulsion is not contemplated to be practised, it is contemplated to be permitted. The In dians, tell us that they cannot remain under the laws of Geor gia ; and the President himself, and the secretary of war, say, in so many words, to the Indians, that their only means of escaping this dreadful calamity is to emigrate to the west. The tenor of all the language employed proceeds upon the idea that it is a calamity which they cannot endure. And this is no new idea. A gentleman, not now a member of this house, in a report made upon this subject to a former Congress, has truly said, " that such a measure must prove destructive to the Indians." I have said, that the President had not recognised the rights of Georgia, as Georgia lays them down. What is his lan guage ? He says, through the secretary of war, to a delega tion of Cherokees, "An interference to the extent of affording you protection, and the occupancy of your soil, is what is de manded of the justice of this country, and will not be withheld." It seems, then, that they are to remain in the occupancy of their soil. But this is not compatible with the claims of Georgia. Where does the gentleman discover his ray of hope, but in the assurance that the operation of the laws of Georgia will com pel the Indians to abandon their country. The chairman of the committee takes the same ground, and says, that it is no great hardship for the Indians to be brought under the laws ofthe State, inasmuch as they will still "enjoy their own lands," and, " as it is understood" that the States do not contemplate to take the land away from the Indians by force, there can be no harm in passing this bill. I do not know whence the gentleman derives this " understanding." I, for one, understand no such thing. I understand that the States do mean to have the land. It is the land they want. Georgia claims, by the compact of 1802, that the Indian title shall be extinguished, in order that the land may come into her pos session. Has she ever claimed the mere sovereignty, as such? Never — but always the land. When, therefore, the honorable chairman says, " It is understood," I say that it is not under stood, and that it cannot be understood from the public acts ofthe State. Is there any man on this floor entitled to speak MR. EVANS S SPEECH. 153 in the name of a sovereign, independent State, as to what she will, or what she will not do ? and this when she tells us that the land is hers, and that she " will have it," though she will not resort to violence until other means fail? These other means are her laws. If she extends them over the Indians, and the Indians still remain where they are, then, clearly, the other means will have failed ; and then, if we may believe her own words, she does mean to resort to violence. When the gentleman therefore says, that it is with great satisfaction he observes that the President recognises the rights of Georgia, I tell him the President does no such thing, and that Georgia will be as little satisfied with this executive as she was with the last, if he protects the Indians on any terms in the occu pancy of their lands. Sir, I have been endeavoring to show that the object and intention of Georgia, in extending her juris diction over the Indian tribes, is to compel them to remove. Such will be its effect. Upon this subject, hear the commis sioners who were sent last year to negotiate with the Indians for their removal : General Carroll, to the secretary of war, describing the diffi culties he met with in inducing the Indians to emigrate, says, " The truth is, they rely with great confidence on a favorable report on the petition they have before Congress. If that is rejected, and the laws ofthe States are enforced, you will have no difficulty of procuring an exchange of lands with them." General Coffee, upon the same subject says, " They express a confident hope that Congress will interpose its power, and prevent the States from extending their laws over them. Should they be disappointed in this, I hazard little in saying that the government will have little difficulty in removing them west of the Mississippi." Mr. Chairman, I think it can require no further proof to satisfy us that the legislation of Georgia is designed, and will have the certain effect, to coerce the Indian tribes, and to com pel them to seek a new home, beyond the reach of the avidity and oppression ofthe white man, if such a spot remains to them of all their once vast domains. Yet we are told that this re moval is to be purely voluntary ; and gentlemen point us to the bill, and say, there is no compulsion there. No, Sir ; and there is no protection there. I shall proceed, now, Sir, to consider the general subject of our relations to some of the Indian tribes who are to be affect ed by this bill, and who have invoked our protection ; the obli gations we have entered into with them ; the claims they have upon us ; and the duties which we are bound, by the most solemn stipulations, to perform towards them. In this question are involved the rights of Georgia, as a member of the Union, and the powers of the general government over Indian tribes resident within the borders of a State. These topics have al ready been so fully and ably discussed elsewhere, and so elo quently and elaborately debated here, by the honorable mem ber from New York, (Mr. Storrs,) that I am sensible very little 154 mr. evans's speech. remains to be said. I shall endeavor, as far as possible, to avoid the repetition of arguments and authorities, which have been used by others much more ably than I could hope to do. Our relations with the Indian tribes, upon whieh this bill is de signed to operate, grow out of treaties entered into between them and the government of the United States. With the Cherokees, who are more directly concerned in this question than either of the other tribes, we have negotiated not less than sixteen. The first was that of Hopewell, in 1785, entered into by Congress, under the Articles of Confederation. This was a treaty of peace, and terminated a war, which had existed between them and the United States. The Cherokees placed themselves under the protection of the United States, " and of no other sovereign whatever." After the adoption of the federal Constitution, in 1791, the treaty of Holston was formed ; which was, also, " a treaty of peace and friendship." The tribe again placed itself under the protection of the United States, and "of no other sovereign whatever," and stipulated that they would "not treat with any foreign power, individual State, or with individuals of any State." A liberal cession of territory was made to the Uni ted States, and the United States, by the 7th Article, " solemnly guarantied to the Cherokee nation all their lands not hereby ced ed." Various other treaties have been made since that time, by which a large territory has been acquired, and renewed guaran ties given. These treaties have been negotiated by every ad ministration except the last — have been confirmed by every Sen ate, and approved and sanctioned by every Houseof Representa tives in the appropriations they have made to carry them into effect. By these treaties we have recognised the Cherokees as a "nation" — a political community, capable to contract and to be contracted with. We have received them under our protection and sovereignty, and prohibited them from treating with any "individual State," or placing themselves "under any other sovereign whatever." We have admitted their title to the lands in their occupancy, have paid them for the cessions they have made, and solemnly guarantied to them " their lands." Yes, Sir, " their lands," which had not been ceded. All these rights they claim ofthe United States by virtue of treaties still subsisting. But we are told that they are not a nation, or community, and the laws of Georgia have abrogated and dissolved their political character, and incorporated them as citizens of the State, sub ject to its laws. The party with whom we contracted is annihi lated. This is the first infraction of which they complain. They are now claimed as under the sovereignty of Georgia alone, though we had received them under our sovereignty, and • guarantied to them our protection. Ofthis they also complain, as a violation of our treaties. The lands which they occupy are denied to be theirs ; and Georgia says, " she will have them." How does this claim comport with the obligations we have en tered into ? Our stipulation with the Indians is, that they are a distinct community, and have the power of holding their own MR. EVANS S SPEECH. 155 land. This guaranty is about to be violated, and we are called upon to sit still, and see it violated. Sir, I could go farther. The guaranty in the treaty of Holston is a guaranty to the In dians as a nation. No individual ownership is therein recogni sed ; and when individuals leave the tracts on which they have resided, those tracts revert, not to the United States, nor to the government, nor to any body else, but to the nation, as a nation. But this bill contemplates a separate negotiation with individu als, and it declares, that all the land abandoned by individuals, who become emigrants, reverts not to their tribe, but to the State of Georgia. We are called to pass a law exchanging land with private individuals, when we have guarantied the possession of that land to the Cherokee nation, as common property; so that we are not only to stand by and see Georgia violate our faith, but to pass a bill, which very bill expressly violates it. The President tells us, Georgia had a right at any time to extend her laws over the Indians within her limits, and says that her doing so will be no violation of our guaranty. But I ask whether the laws of Georgia do not annihilate the party we contracted with ? Georgia comes in, and says, that all laws, customs and usages of the Indians, as a nation, shall be utterly obliterated. When this has been done, where, I ask, is the party with whom we contracted ? I ask Georgia to show us the community, with which we have entered into engagements. They will tell me there is no such party. The nation, as such, ceases to exist But what has caused it to cease ? The laws of Georgia. It is those laws that have violated our stipulation, and utterly anni hilated the very party with whom we stipulated. It seems to me, the gentlemen get into a dilemma. The ground they take is, that Georgia has a right to abolish the tribe, and to resolve it into its elements, as individual citizens of the State. Well, Sir, grant this, and what then ? Then they bring in a bill to enable the President to hold treaties — but with whom ? With the tribe of Indians? With the Cherokee nation ? Why, Sir, that tribe is abolished — there is no Cherokee nation. With whom, then, is the President to make a treaty ? With the Indi ans convened in council ? Sir, they cannot convene — the laws of Georgia forbid it, and subject them to imprisonment and punishment if they do. They dare not assemble to treat, and yet the President is to hold a treaty with them ! If the gentle man's positions are true, he will have nobody to treat with. Not with individuals — that is in the very face of our contract. I refer gentlemen to the treaty of Holston, where the guaranty is to the nation. But we learn, as I have already |iad occasion to remark, that the construction which the President places upon these treaty stipulations, is not " adverse to the sovereignty of Georgia." While he admits the Indians to have a just right to the occu pancy of the lands, he denies to them the right of jurisdiction and government over their territory. Sir, have we not received those tribes under our protection, and refused to permit them to become subject " to any other sovereign whatever ?" Is this not 156 MR. evans's speech. " adverse to the sovereignty of Georgia ?" The idea of separa ting tile jurisdiction of a nation from the territory, which it owns as a nation, is a modern discovery. And I yield so far to the argument of gentlemen on the other side, as to admit that the discoverer, whoever he may be, is entitled to the full credit and benefit of the discovery. Such was not the doctrine of Georgia in 1825. In the discussions which then took place be tween her chief magistrate (governor Troup) and the secretary of war, in relation to the treaty of the Indian Springs, the former said, " Soil and jurisdiction go together ; and if we have not the right of both at this moment, we can never have either by bet ter title. If the absolute property and the absolute jurisdiction have not passed to us, when are they to come ? Will you make a formal concession ofthe latter? When, and how ? If the ju risdiction be separated from the property, show the reservation which separates it : 'tis impossible." The argument then was, that jurisdiction was acquired by treaty, as well as soil. The argument now is, that jurisdiction always belonged to the State, and that compact is not necessary to confer it. The governor inquired when and how you could obtain jurisdiction, if separated from the property, and declared that it was impossible. Sir, the doctrines then relied upon for the promotion of the interests of Georgia are in direct collision with the doctrines now advocated for her benefit. Will she preserve consistency, or must new principles of law and right be discovered at every new emergency ? The honorable chair man, (Mr. Bell,) in his report upon this subject, says, "The fun damental principle, that the Indians had no rights, by virtue of their ancient possessions, either of soil or sovereignty, has never been abandoned, either expressly or by implication." Sir, it might he answer enough to say, that this principle has never been asserted, and to call upon gentlemen to prove its existence by other means than the absence of an abandonment of it. But as the gentleman has chosen to state the proposition in this form, I will endeavor to show that it has been expressly abandoned, and by some ofthe States which are most interest ed in the passage of this bill. By the treaty of the Indian Springs, in 1825, with the Creek nation, all their land in Georgia, and a considerable portion of that in Alabama, was ceded to the United States. This treaty was annulled in 1826, for gross fraud and corruption, and a new treaty formed, ceding the lands in Georgia, but not those in Alabama. These States protested against rescinding the first treaty, because, as was contended, Georgia had acquired vested rights under it ; the property in the soil, by virtue of the cornpact of 1802. The lands in Alaba ma, upon the extinguishment of the Indian title, belonged to the United States, while those in Georgia, agreeably to our en gagements in the compact, belonged to that State. These trea ties became the subject of discussion in the Senate ; and I will read a short passage from the debate : — Mr. Benton, of Missouri, said, "he thought that Georgia had no further cause of dissat isfaction with the treaty ; it was Alabama that was injured, by MR. evans's speech. 157 the loss of some millions of acres, which she had acquired un der the treaty of 1825, and lost under that of 1826:" " She had lost the right of jurisdiction over a considerable extent of terri tory" — lost the right of jurisdiction. So, Sir, the doctrine then was, that right of jurisdiction was acquired by treaty, and, when the treaty was rescinded, the right of jurisdiction fell with it. Mr. King, of Alabama, said, " The constitutional question, as regards Georgia, yet remains in force ; and, though it may not seem to apply to Alabama, I still think our rights were violated in annulling that treaty, and adopting another." Now, the rights which Alabama acquired under that treaty were merely rights of jurisdiction — the soil passed to the United States. If, therefore, the complaint of the Senator was well founded, it was the right of jurisdiction which was taken away by the last treaty. If Alabama lost any rights by the abrogation of the first compact, it was that of jurisdiction. Yet the argu ment now is, that the State always had jurisdiction, anterior to all treaties ; and, by virtue of it, her laws have been extended over the whole Indian country. But, Sir, there is a more direct renunciation ofthis doctrine still. In the session of 1826, a Senator from Mississippi (Mr. Reid) moved a resolution of inquiry into the expediency of authori zing process, both civil and criminal, to be served upon persons, citizens of the States, who had fled to the Indian territory for protection. The resolution proposed no other action than upon citizens ofthe United States. Iii explanation of his views, Mr. Reid said : — " He presumed it was already known, that more than half of the State of Mississippi is still in the occupation of the Indian tribes, the Choctaw and Chickasaw nations. In regard to the action of the State laws upon these people, there never had been any difficulty, nor was it ever sought on the part of the State of Mississippi, to extend its jurisdiction over them." " His object was to call the serious consideration of the Senate to the condition of our own citizens, who, after having committed crimes or contracted debts, locate themselves among those Indians, and consider themselves as beyond the jurisdiction of our laws." * * * "He repeated, it was not sought on the part of the State of Mississippi, or by her Senators in this house, to enforce the action of the laws on the In dians themselves ; they did not claim to consider them as subject to their operation. The Indian tribes have laws and traditionary usages of their own, and are entitled to the patronage and protection of the general government." * * * ****** " At present, as far as he had been able to investigate the subject, it was the opinion of some able jurists on this point, that process does not extend to persons residing on the Indianrferritory ; and he would wish to bring to the consideration of the legisWtive authority of the Union, the question, whether it is competent for us to extend our civil and criminal process, or whether it is one of the appendages, one of these people's rights as sovereigns, to afford a sanctuary to vagabonds from every part of the Union." * * * * * * " At the last session of the Legislature of Mississippi, a proposition was made to extend the civil power of their courts to their own citizens who had contracted debts within the State, and had fled to this savage 14 158 MR. evans's speech. sanctuary. The matter was debated for many days, and it was at last decided, that there existed no power in the State to extend its laws in the manner sought by the proposition." * * * << Therefore, if there was any remedy on this subject to be obtained, it was to be at the hands of the general government, and not by force of any compe tent authority in the State government." I think, Mr. Chairman, it sufficiently appears from the ex tracts I have read, that the State of Mississippi, so deeply inter ested in this question, and so anxious to maintain all its rights, has wholly repudiated, both by its Senators in Congress and by its Legislature, the doctrine which the chairman asserts " has never been abandoned." Jurisdiction, in its most ample ex tent, is hereby conceded to the Indians ; and if that State has more recently, under the auspices of the present executive, adopted a different course, and obtained new views of its rights, it remains for it to justify its course to an enlightened public opinion, and to the scrutiny of the world. But, Sir, by the 11th article of the treaty of Holston, we have expressly recognised the Cherokee country not to be within the jurisdiction of any State. That article provides, that if any crime be committed withiu their territory, by a citizen of the United States, which, "if committed within the jurisdiction of any State," would be punishable by the laws of such State, it shall be proceeded against in the same manner as if the offence had been committed "within the jurisdiction of the State, &c." Can any thing be more manifest, than that the Indian territory was not to be deem ed within the jurisdiction of the State? This is, in truth, a guaranty, on our part, that we will not invade their jurisdiction. And are we now to be told, that we have given no guaranty " ad verse to the sovereignty of Georgia ?" Sir, is it becoming a great and magnanimous nation to frit ter away its obligations, to search for nice distinctions and refin ed casuistry, to justify its violations of faith? I have been attempting to show, Sir, that the idea of separating the right of jurisdiction from the right of soil is novel and unfounded ; and that, by our stipulations, the right of jurisdiction is fully conce ded to the Indian tribes within their own territories. If I have succeeded in this, it will hardly be contended that the soil is not theirs also. Indeed, I do not understand, that the executive or the committee assume the position that they have not a right to the occupancy of their lands, however Georgia may assert the contrary, and claim them as exclusively her own. It will not, therefore, be necessary for me to discuss the question, what rights have the Indians to their lands, more especially, as the gentleman from New Yogk (Mr. Storrs) has done it with so much ability. I shall, however, notice hereafter some of the arguments which have been adduced to sustain the right wliich Georgia sets up to these lands. The gentleman who last addressed the committee (Mr. Foster) seems to be aware that the obligations and guaranties contained in our treaties do, in truth, conflict with the pretensions of Geor- MR. evans's speech. 159 gia ; and he assumes the position that they are, therefore, uncon stitutional and void. The same sentiment is advanced by the President, and by the committee on Indian affairs, if the meaning and construction of the treaties are such as we have endeavored to maintain. The ground taken is, that the United States had no right to enter into stipulations inconsistent with the sovereignty of Georgia ; that we are under obhgations to her, which we must first discharge. Now, Sir, it comes with an exceeding ill grace from us, when we are called upon to perform our promises, to re turn for answer. that we had no authority to make them. Have we not received ample compensation for the promises made ? Whether we had the authority or not, is a question between us and Georgia, and not between us and the Cherokees. They hold our warranty of authority ; and shall we refuse to be bound by it ? But if we had no right to make the contract, what is to be done ? I presume, Sir, it is to be rescinded. If the treaty is not binding on us, can it be binding on the Cher okees ? If we refuse to be bound by the guaranty, may they not refuse to be bound by the cession ? The one was the considera tion for the other. Shall we restore them to their original condi tion ? Shall we cede back the territory ? Gentlemen have fore seen the difficulty, and they say, as we caimot give back the land, we will make compensation ; and what is the compensation which they propose ? It is, that we should say to these Indians, Move farther off — leave us— cross the Mississippi — go to the Rocky Mountains. This is our will, and you must obey. Sir, it requires two parties to make a contract, and the Indians do not agree to this mode of compensation. They tell us it is inflicting a deeper injury still. And now, Sir, when we are about to compensate them for a violation of our faith, we propose to do it not as they will, but as we will — by withholding " Our aid and our good neigh borhood" — by permitting them to be driven into the recesses of the forests, to become the prey of more barbarous nations. And this we call compensation. But why had we no right to enter into the stipulations ? Gen tlemen tell us that we are thereby erecting a State within the lim its of another State, against the consent of the latter, which is ex pressly interdicted in the Constitution. Sir, I deny the fact. I deny that by any thing in the treaties we do erect or form another State. If these Indian tribes are a State now, they were a State before. They obtain no additional authority from the treaty. They derive from it no pohtical existence. The treaty merely re cognised that which had existence at the time it was made. It gave the Indians nothing. They were as much a State before as they are now. But I ask, What is the true meaning of that term in the Constitution ? The " State" there mentioned means a mem ber of this confederacy — a State having all the prerogatives, and bound by all the obhgations which that instrument contained — that shall have representatives on this floor and in the Senate, and should have a voice in the election of President. The clause is simply a limitation of the power of Congress in the admission of new States into the Union. Sir, do we admit a new State into 160 * MR. evans's speech. the Union, when we acknowledge the Cherokees as an indepen dent tribe ? Do we restrict them as the Constitution restricts the States ofthis Union ? Do we confer powers and privileges which that instrument confere ? We do not When I heard gentlemen urge this objection, and talk about erecting a State within the lim its of another State, I was astonished. It may be proper enough to call the Cherokees a " State," if we affix to that word some other meaning than it bears in the Constitutiori ; but " State," as there used, means neither more nor less than a member of the Union. It is said, however, that these Cherokees are forming a gov ernment, and are taking rapid strides to power. This position is equally untrue. They have not formed a government. They always had a government. They were ruled by councils, and by traditionary laws ; and all they have done is to put that which was formerly oral only, into a written form. This may be improving their government, but it is not creating it, nor assuming any new power. They disclaim such an idea. But it is said that this re cognition is inconsistent with the sovereignty and jurisdiction of Georgia. Do not gentlemen perceive that this argument assumes the whole question ? The very question is, whether the jurisdic tion of Georgia does or does not extend over the Cherokees. They assume the veiy question we are debating. They say that these lands lie within her chartered limits, and that therefore she has jurisdiction over them as a matter of course. " Chartered limits !" " Chartered limits !" Sir, one would think there was some magic, some charm in these words, which conferred im mense powers, so great as to subvert all Indian rights whatever. But what are chartered limits ? Certain lines described in char ters derived from Great Britain. Gentlemen argue that the sovereignty of Georgia is derived from her chartered limits. Sovereignty follows them as a thmg of course. This brings us to a further question. What right had the crown of GreatBritain to grant these chartered limits, and to extend them round the In dian possessions ? Did the Indians consent ? No, Sir. I shall be told that it was an act of sovereignty ; and this brings us back again to the former question, Whence comes your sovereignty ? And thus we are reasoning in a circle. The State has jurisdiction and sovereignty because it has received chartered limits, and it has chartered limits from its right of sove reignty. Each of these is the cause, raid each the effect ofthe other. To such reasoning as this I have a short answer. I tell gentlemen, that chartered limits are one thing, and jurisdictional limits are another. I deny that the two are co-extensive. Chartered hmits convey no other right than as against those who grant the charter — no other power than to obtain sovereignty and jurisdiction from those who possess it, and could confer it. If the gentlemen mean to fix any other idea to the term chartered limits, then I deny that the Indians are within the chartered limits of Georgia, and I ask, How came they there ? And here we come to an argument which has been much pressed. We are told of the right of discovery ; that the discoverers had MR. evans's speech. 161 a right to plant colonies, and to protect them, and to drive off the hostile tribes ; and we are further told, that civilization has a supe rior claim over the savage life ; that the earth was intended by Providence to be cultivated. The gentleman from Georgia (Mr. Foster) has read the opinions of eminent men to sustain these posi tions. Sir, these are very fine theories, and I shall not stop to ques tion them ; but they have nothing to do with the matter in hand. The question is, not what rights the first discoverers and settlers had, nor whether civilization might or might not lawfully usurp the possessions of the savage. All these might be very good con siderations, and very interesting questions, before we entered into contracts with the Indians. But the simple question now is, What are their rights under these contracts ? How have the natural, original rights of the Indians been modified, confirmed, and guar antied by compacts ? How have our rights as discoverers; or as civilized nations, been waived, defined, and limited by treaties? Surely it will not be contended that the rights of discovery, or con quest, or civilization, are so sacred and immutable as to be incapable of change or modification by voluntary compact. The rights of discovery have been So clearly .defined by the honor able member from New York, (Mr. Storrs,) and so ably expounded in the other branch of Congress, in debates now before the world, that I shall say nothing in relation to them, but to repeat in a single word, that they are conventional rights between discoverers. As to the right derived from cultivation and civilization, when does it commence ? Only when that part of the world inhabited by civilized man is full and overflowing, and a portion of its inhab itants are compelled, from the necessity of the case, to seek a new home. Civilization may not till then say to the savages — Give ground, yield us more space. Now, lask whether Georgia, Alaba ma or Mississippi, are so densely peopled, that more land is want ing for their citizens? Are there not 200 millions of acres belong ing to the United States still unsold ? Is not the population of these States sparse and thin ? Let them wait till their own territory shall be filled up ; then they may assert this right with a better grace. But then another question may arise on this very doctrine. The Indian territory may then be as dense in population as Georgia, and its hihabitants as civilized also. If that period should ever arrive, may not the Indians turn round on Georgia, and say — We are a civ ilized people, our country is full to overflowing, and we want some of your land to accommodate our suffering population? Will Georgia be willing to yield to such a claim ? Sir, the period is distant, veiy distant, when we can make good a right to usurp the Indian possessions on the ground of the su perior title of civilization. The gentleman from Georgia (Mr. Foster) read the opinion of Mr. Adams, the late chief magistrate of the Union, of Dr. Morse, and of some other person, said to be an eminent lawyer, upon this point ; and how far did it meet the present juncture ? The subject under consideration was the orig inal right ofthe natives to the whole continent Does this lawyer assert that the rights of civilization were so imperious and inexor able as to leave the Indian no spot of earth to rest upon ? Does 14 * 162 mr. evans's speech. he deny that the right, whatever it was originally, may be modi fied by compact ? Does he assert the monstrous position, that when ciyilized covenants with savage man, the compact is not binding ? No, Sir ; he went into the question only as considered aside from all compacts and conventions ; and the strongest lan guage used was, " that the original right of the Indians had been doubted." None, surely, will contend, that out of the rights of civ ilization grows a right to obliterate at will all your own agreements and promises. We stop here. We base our argument on the foundation of contract. But to return, Sir, to the question, what authority the United States had to enter into these stipulations. It seems to me that those who so strenuously deny it, should account for its undisturb ed exercise for so many years past. It was first exercised under the Confederation, by virtue of which the treaty of Hopewell was formed. The gentleman read an article in that. instrument to show that each State retained its own sovereignty ; and hence he ' argues that the United States were divested of all power within the range of that sovereignty. But, Sir, the rights retained were those not delegated. The States did delegate to the United States the right of peace and war, and they expressly interdicted that power to the States. " No State shah engage in any war, without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of In dians to invade such State, and the danger is so imminent as not to admit of delay," &c. Georgia could not therefore engage in war, except in the imminent danger provided for. As to peace : " The United States shall have the sole and exclusive right and power of determining on peace and war, except in the cases" mentioned before. The States had therefore no right to make war, except when under actual invasion, or imminent danger of invasion ; but they had not the corresponding right of malting peace, under any circumstances. The right of war was derived from the imminence ofthe danger; but the United States must come in, in order to conclude a peace. The treaty of Hopewell was a treaty of peace formed by virtue of this power. It was made to put an end to war. Had the State of Georgia a right to conclude the peace ? No, Sir. The United States alone could do it by treaty. Is there any other mode ? None. The gentleman complained, in respect to the treaty of Hopewell, that the Cherokees had acknowledged then dependence on the government of the United States, had placed themselves under its protection, and under no other sovereign whatever. He said the government had no right to make such a stipulation. But if the government must conclude a peace, (and all yield that,) surely they had the right to fix the terms.. Why was this objection not made at the time ? I am told that Georgia protested against the treaty. I am well aware of it. The ground of that protest was, that the United States were assuming the right of regulating mat ters with the Indians which belonged to Georgia ; and that the legislative right of Georgia had been expressly reserved in the Ar- mr. evans's speech. 163 tides of Confederation. The article reads thus : The United States shall have the power of "regulating the trade, and managing all affairs with the Indians, not members of any State, provided that the legislative right of any State within its own limits be not infringed or violated." Georgia protested, because she thought her legislative rights were infringed. Her protest was submitted to Congress in 1787, at a time when many of those who had formed the instrument of Confedera tion were administering the government, and must be supposed to know the extent of the powers which it conferred. A long report was made in Congress upon the subject ofthe protest, denying the ground taken by Georgia and North Caro lina, which State had also protested, and affirming that the pro viso had no such meaning as was contended. I will read a part of that report : " But there is another circumstance, far more embarrassing, and that is — the clause in the Confederation relative to managing all affairs with the Indians, &.c. is differently construed by Congress and the two States within whose limits the said, tribes and disputed lands are. The construction contended for by those States, if right, appears to the committee to leave the federal powers, in this case, a mere nullity; and to make it totally uncertain on what principle Congress is to inter fere between them and the said tribes. The States not only contend for this construction, but have actually pursued measures in conformi ty to it. North Carolina has undertaken to assign land to the Chero kees, and Georgia has proceeded to treat with the Creeks concerning peace, lands, and the objects usually the principal ones in almost every treaty with the Indians. This construction appears to the committee, not only to be productive of confusion, disputes, and embarrassments in managing affairs with the independent tribes within the limits of the States, but by no means the true one. The clause referred to is — ' Congress shall have the sole and exclusive right and power of regu lating the trade, and managing all affairs with the Indians, not mem bers of any of the States ; provided that the legislative right of any State, within its own limits, be not infringed or violated.' — In forming this clause, the parties to the federal compact must have had some definite objects in view ; the objects that come into view, principally, in forming treaties or managing affairs with the Indians, had been long understood, and pretty well ascertained, in this country. The commit tee conceive that it has been long the opinion of the country, support ed by justice and humanity, that the Indians have just claims to all lands occupied by, and not fairly purchased from them ; and that, in managing affairs with them, the principal objects have been those of making war and peace ; purchasing certain tracts of their lands ; fix ing the boundaries between them and our people, and preventing the latter settling on lands left in possession of the former. The powers necessary to these objects appear to the committee to be indivisible, and that the parties to the Confederation must have intended to give them entire to the Union, or to have given them entire to the State. — These powers, before the revolution, were possessed by the king, and exercised by him ; nor did they interfere with the legislative right of the colony within its limits: this distinction, which was then, and may be now taken, may perhaps serve to explain the proviso part of the recited clause. The laws ofthe State can have no effect upon a tribe of Indians, or their lands, within the limits of the State, so long as that 164 MR. evans's speech. tribe is independent, and not a member of the State ; yet the laws of the State may be executed upon debtors, criminals, and other proper ohjects of those laws, in all parts of it; and therefore the Union may make stipulations with any such tribe, secure it in the enjoyment of all or part of its lands, without infringing upon the legislative right in question. It cannot be supposed the State has the powers mentioned, without making the recited clause useless, and without absurdity in theory as well as in practice ; for the Indian tribes are justly consider ed the common friends or enemies of the United States ; and no par ticular State can have an exclusive interest in the management of affairs with any of the tribes, except in some uncommon cases. The committee find it difficult to reconcile the said construction of the re cited clause made by the two States, and their proceedings before mentioned, especially those of Georgia, with what they conceive to be the intentions of those who made the said motion ; for the committee presume that the delegates of Georgia do not mean that Congress is bound to send their forces to punish such nations as the State shall name, to act in aid of the State authority ; to send her forces and recall them as she shall see fit to make war or peace. Such an idea cannot be consistent with the dignity of the Union, arid the principles of the federal compact. But the committee conceive that it is the opinion of the honorable movers, and also the general opinion, that all wars and hostile measures against the Creeks, or any other independent tribe of Indians, ought to be conducted under the authority of the Union, at least where the forces of the Union are employed ; that the power to conduct a war clearly implies the power to examine into the justice ofthe war, to make peace, and adjust the terms of it; and that, there fore, the terms or words of the said motion, if it be adopted by Con gress at all, must be varied accordingly." Such, Sir, was the opinion of Congress of its powers under the Confederation; and it practised upon that opinion. Not long after this, the present Constitution of the United States was formed and ratified, Georgia assenting. One article ofi that instrument is — "All treaties made, and which shall be made, under the authority of the United States, shall be the supreme law of the land." The treaty of Hopewell was a treaty then "made." Its validity as a treaty had been already asserted by Congress. Georgia assented to this article of the Constitution, thereby sanctioning the treaty of Hopewell, and giving it validity, if it had none before. Georgia yielded the point in controversy : by virtue, as she supposed, of her reserv ed legislative rights, she had made a treaty, and acquired lands by it But of what use was that treaty and those lands to her? None at all. And by the compact of 1802, she expressly stipu lated that the United States should extinguish the Indian title to the county of Tallahassee— the lands which the Indians had before yielded. Sir, was not this an admission that the treaty which the State had previously made was of no validity ? that the Indian title still remained to be extinguished ? The Con federation did not recognise the right of Georgia to make a treaty, and Georgia, therefore, did not acquire the lands ; but had to call in aid the power of the United States to do it for her. Such was the authority possessed by the United States un der the articles of Confederation, and such was the exercise of MR. evans's speech. 165 it. Not long after the treaty of Hopewell was made, and the powers of the general government asserted in the report I have read, the present Constitution was adopted, conferring upon the United States the same powers of peace and war— of regulating the affairs with the Indians, without the limita tion as to the legislative rights of the States, which was the foundation of the Georgia protest. The restriction under the Confederation was found to be embarrassing and obscure, and therefore was omitted ; and, as Mr. Madison, in a number of the Federalist, referred to by the gentleman from New York, (Mr. Storrs,) says, was designedly omitted. The United States, therefore, derives its authority under the Constitution ; and in the very same year in which it was ratified, commenced nego tiations and concluded treaties with Indians living within the limits of a State. Did they do this incautiously, iguorantly ? No, Sir ; they proceeded in the most cool and cautious man ner. The government was circumspect and deliberate. The then President did not take a single step without the previous consent of the Senate. He went to that body in person, and inquired whether he would be authorized to offer the guaranty and to pledge our faith ? The response was, that he should be so authorized. The States interested heard the stipulations which were proposed, and they set up no objection. It was proposed to them that the President should treat with the In dians within the limits ofthe State, and Georgia assented to it. And now, are we to be told that the general government had no authority, and that Georgia is not bound by the treaty ? The treaty was made in conformity with their advice and consent, and was subsequently ratified by the Senate also, with the con sent of Georgia ; and are we now asked, where was our author ity to make it ? Those who deny the right must account for so extraordinary a procedure. Gentlemen say they can well account for it ; and the solu tion is, that the treaty was for their benefit ; and, therefore, though the United States had no authority to make it, yet that they submitted to it because it was for their interest, knowing, all the time, that the government had no right to do it. Sir, it is a well known rule in morals and in common sense, that every one making a promise is bound by it in the sense in which he knows the other party to understand it. When Georgia, therefore, knew the promises which this government was making to the Indians, and yielded her assent, she shall be precluded from asserting that either she or we are not bound, according to the sense we then knew the Indians put upon those promises ? By this rule our guaranty is to be measured ; and I, for one, will never move an inch to relieve a State which thus permits us to enter into engagements, and receives the benefit of our contracts, and at last comes forward with the complaint that we had no right to make them. I say to Georgia, If we had no right without your consent, your con sent has been obtained. It is too late. You are estopped. 166 mr. evans's speech. Sir, we have heard another doctrine, at which I was, I con fess, both astonished and alarmed. We are told that these national treaties are " expedients," resorted to merely to ac complish our own ends, made for our interest, and to be con strued for our benefit. We have a very extraordinary history of them in the 16th page ofthe committee's report It is there said, we were in a critical situation. Difficulties existed with respect to the forts on our western frontier, and about the Mis sissippi, with Great Britain and Spain. We had just come out of a long war, and were poorf That we were in no condition to incur Indian hostilities ; and in this particular juncture, general Washington was called upon to settle the mode of conducting our relations with the Indian tribes, and to secure our peace with them. That he adopted the practice of regulating our affairs with them by treaties. Sir, are they any the less obli gatory because they were made when we were in difficulty ? Had we told these Indians, We are now in a critical condition; we waut you to treat with us ; but by and by, when we get out of trouble, and grow powerful and strong, we shall consider our compacts as expedients — mere matters of legislation over you — do you think they would have ceded their lands ? If the Indians, in the day of our calamity, received our plighted faith, and yielded up their territories, so much the more reason is there that we should now observe tljem as sacredly binding upon us. There is a moral obligation, beyond all treaties, to keep our promises 'in good faith, in the day of our strength and power, to which, in the day of our weakness, we were indebted for security and peace. Yet the gentleman at the head of one ofthe committees ofthis house has told us, that these engage ments were mere " expedients" to obtain peace and get the Indian lauds. Sir, if such is that gentleman's opinion, I am sorry he expressed it to the world ; for I am not willing to affix such a stigma on our national fame ; I am not willing to com mit the honor of this nation to the gentleman's keeping ; and having, as one of the humblest citizens of the republic, some share in her faith and her character, I protest for myself, and for those I represent, against any such interpretation of our engagements. The 7th article ofthe treaty of Holston contains the guaranty of which so much has been said in this debate ; and the follow ing is the explanation which the committee put upon that article : " It was therefore thought necessaiy, in order to ensure peace, that some strong and decisive evidence should be given of the determination of the government to prevent, by force, any further intrusions upon the lands reserved for the Indians, and a guaranty of their boundary was thought of, as the means 'best calculated to effect that object. It was probably a device adopted more for the intimidation of the whites, than for any effect it was likely to have upon the Indians themselves." The guaranty was necessary to secure peace — in other words, the Indians would not make peace without the guaran- MR. EVANS S SPEECH. 167 ty. But, instead of being for their benefit, and obligatory upon us, it was probably a device for the intimidation ofthe whites ! Sir, I deny this assertion, and I call upon the gentleman to produce his authority for it. How absurd an idea ! how utter ly preposterous; Will the gentleman tell me that a solemn promise in a treaty with another party was not intended to have any effect upon those to whom it was made — but was a device to intimidate the party making it ? Could we not in timidate and restrain ourselves by laws ? I repudiate the idea : I cannot consent thus to fix an indelible stigma on the fair fame of my country. Sir, the language of the treaty was sin cere, intended to be obligatory upon us, and should be observed most sacredly. The great object of the gentleman is to procure the removal ofthe Indians ; and to obtain their consent, he proposes, in the bill, that the President shall " solemnly guaranty" — the very words ofthe treaty of Holston — solemnly guaranty to them the country to which we propose to send them. The gentleman says, that the guaranty in that treaty was " probably a device for the intimidation of the whites." Weil, Sir, let the project be executed — and within a period that the gentleman may live to see, the whites will again press upon them, and say, You must go — move farther west. When the Indians inquire for what cause, the same reasons will be given then that are given now. All history shows, that if you remain near us, you will be destroyed. The red man cannot live in contact with the white. Humanity and your own interests require your removal. Be sides, we have a right to the land. Our ancestors discovered it. Are we not civilized ? And has not civilization a right to prevail over savage life ? Suppose it be so, reply the Indians, but we were sent here not by our consent, but by your power — and did you not " solemnly guaranty" to us these limits ? Very true — but were you so ignorant as not to know that our guaranty was only an expedient ? only a device ? Had you not sagacity enough to perceive that it was only a plan to get rid of you ? to send you off out ofthe way ? Were you not told by us at the time, that " Indian treaties were only a species of legislation ?" Were you not told by a committee of Congress, that these things were only a device ? that in our conduct towards you, " one of those expedients was, to appear to do nothing which concerned" you, " either in the appropria tion of your hunting grounds, or in controlling your conduct without your consent." Nothing but appearance — really and truly, we did as we pleased. Sir, I have no doubt the gentleman is sincere in the guaran ties he proposes to give ; and intends to bind the nation in all future time. If he should live to see his assurances thus ex plained and chaffered away, he will feel something of the emo tion which Washington, and the fathers of the country, would have experienced, could they have anticipated that their solemn assurances were to be thus lightly regarded. 168 MR. EVANS'S SPEECH. [Mr. Bell interposed, and said the report had not been cor rectly understood — that he did not contend that the guaranty was not binding.] Sir, I regret very much, if I have misrepresented any senti ment of the report. If the gentleman will point out any part of it which he wishes to be read, I will cheerfully read it, and abide bv his correction. " [Mr. Bell declined.] Sir, I have commented upon it as I understand it, and I quote the language which I find in it. The report gives another reason why the guaranty should not be understood in the sense we affix to it — "The victory of the 20th of August, 1794, over the northern Indians, with whom the Creeks and Cherokees had kept up a regular corre spondence ; the expedition, which was secretly planned, for carrying the war into the Cherokee country, and which was successfully con ducted by the suffering frontier inhabitants ; and the pacific dispositions of the Spanish authorities of Florida, which preceded the treaty of 1795 with Spain, were the actual restorers of peace." " After this time, the government was under no obligation to renew the guaranty contained in the treaties of 1790 and 1791, with the Creeks and Cherokees, but, as it has done so, it only shows that that stipula tion was not believed to affect the nature of the title by which those tribes held their lands, or to introduce any new principle, in relation to their rights generally." Thus, Sir, it seems that our pacific relations with the southern tribes were the result of a victory obtained by general Wayne over the northern Indians, with whom the Cherokees and Creeks had some alliance — that they were therefore vanquished — that after this we were under no obligation to renew the guaranty, and, having renewed it, it is not therefore to be construed as affecting the nature of their title, or the extent of their rights. Sir, is this the rule by which treaties and compacts are to be construed ? I had supposed that the true mode of arriving at the meaning of any clause, was to examine and weigh the terms in which it is couched — to compare it with the general spirit of the instrument, and not to inquire into the inducements and ob ligations resting upon the parties at its formation. Suppose this guaranty to be the merest gratuity in the world, on our part — that we were, in truth, under no obligations to make it — does it thence follow, that it is to have no meaning, or a restricted mean ing? Have we thence a right to construe it away ? Surely not. If we have made the guaranty, we must be bound by the guar anty, in its true, full sense, as understood at the time of making it. This idea of abrogating the force of treaties is of modern origin. The parties who now favor it were formerly among the most zealous defenders of the faith and obligation of trea ties. In 1827, Georgia contended most manfully, that treaties were sacred,' binding, immutable. She demanded the full per formance of the stipulations with the Creeks, at the Indian Springs, and wholly denied the power, even of the parties to the compact, to rescind it, though it was founded in gross fraud MR. EVANS'S SPEECH. 169 and corruption. In every line of her remonstrance, we perceive the tenacity and force with which she clung to the validity of treaties. Sir, in a communication, to which I have already re ferred, from the President to the Creek Indians, in which he en deavors to convince them that the treaties are not binding -upon us, if construed as impairing the sovereignty of Georgia^ he claims from them the most exact performance of their obliga tions : " Our peaceful mother, earth, has been stained by the blood of the white man, and calls for the punishment of his mur derers, whose surrender is now demanded, under the solemn obligation ofthe treaty which your chiefs and warriors, in coun cil, have agreed to. To preserve peace, you must comply with your own treaty." With what face can we require of them the full, faithful performance of their promises, when, in the same breath, we tell them that we had no authority to give the assur ance on our part ? Let us construe, and so perform our engage ments, as to preserve the national faith and honor — as will in no event expose us to the censures of the world. Sir, I have before me many documents which I had intended to use, illustrative of the policy of the government towards the In dians — as well of the crown before the revolution, as of the Congress under the Confederation, and since, under the present Constitution. In all these, I find abundant vindication of Indian rights, to the full extent as I have endeavored to maintain them ; but I forbear to trespass upon the kind indulgence of the com mittee. I will now proceed, Mr. Chairman, to a brief consideration of some other topics involved in the bill before us, and which have been discussed at much length by the member from Tennessee, (Mr. Bell.) The gentleman computes the expense, which will be incurred in the prosecutionof this measure, at the most, as not exceeding five millions of dollars. The very nature of the sub ject forbids accurate and minute calculations. As a general principle, we all know that public expenditures vastly exceed previous estimates. Nothing is more common. I am not pos sessed of sufficient data to form an estimate with any pre tensions to accuracy ; but, Sir, when you consider that 60,000 people are to be removed a distance of several hundred miles — that they are to be subsisted for one year after they have reached the destined land — that customary presents and rewards are to be given to them — that all their improvements, possessions, and property which they leave behind, are to be paid for — that agents, commissioners, and contractors, are to be employed and com pensated — and moreover that you will be obliged to purchase ofthe tribes beyond the Mississippi a right to plant others there, I think the most orthodox believer in the dangers of a redun dant treasury will have no occasion to be alarmed for the liber ties of the country. Gentlemen, who have resisted the prose cution of internal improvements as tending to corrupt the States, will have the satisfaction to see this source of their dis quietude removed. But, Sir, I shall make no objection on the score of expense. Protect the Indians in their rights and pos- 15 170 MR. EVANS'S SPEECH. sessions where they now are, and you may have almost any sum to effect their removal, when it can he done with their free, voluntary, unbiased consent. The gentleman seemed. to anti cipate an objection on the ground of a want of constitutional power in Congifess to make the appropriation. I shall say bu» a word on that subject. If these tribes are to be regarded as distinct communities, independent of the States where they re side, possessed of lands which will belong to us when their title is extinguished, I can see no valid objection of the kind the gen tleman anticipated. But if they are to be regarded as individ ual citizens of a State, subject to its laws, possessing property as individuals, and protected in its enjoyment, then I do not easily perceive the authority which we possess to make the ap propriation. Suppose, Sir, that some fifty thousand ofthe citi zens of New York or New England wish to emigrate to the west, and ask the aid of government to enable them to accom plish that object Would such an application be listened to for a moment ? Should we not be reminded that the powers ofthe general government were all " enumerated," and among them there was none authorizing it to appropriate the public money to enable individuals to change their location ? Sir, this hall would echo with the perpetual reiteration of "constitutional scruples." The gentleman (Mr. Bell) has urged the passage of this bill on the ground of humanity to the Indians, and the promotion of their own interests and happiness. He informs the commit tee, that the tribes proposed to be removed are a degraded, de clining race, who are rapidly wasting away, and will ere long be destroyed, if they remain in their present situation. The lessons of history are adduced to show that the red man cannot live in contiguity with the white — that it is the inevitable fate of the savage to perish whenever civilization has planted its foot with in his confines. However just this 'may be in the general, it has no application to the southern tribes, particularly to the Chero kees, who are chiefly interested in the subject before us. They are not hordes of wandering savages — they are not hunters. — They till the earth — they have mechanics' shops and trades — schools and churches — cultivated fields and flocks — have made great advances in civilization — formed a written code of gov ernment — established a press. Is it for the benefit and happi ness of such a people to be expelled from their country, and planted again in the depths of the forest, to resume the wild state from which they had emerged? Sir, I do not find any where in the records of history, that the condition of such a peo ple can be promoted by such a measure. Least of all do I find that the interest or honor of any nation can be promoted by a violation of its public treaties— an infraction of its plighted faith. Whether it be for the benefit of the Indians to remove or not, is a question for them to decide ; and so long as they shall de termine that it is not for their advantage and happiness, and refuse to comply, so long are they entitled to protection and securit/in all their rights. In several of pur treaties with them, MR. EVANS'S SPEECH. 171 we have had in view their permanent residence, in the territo ries which they possess. We have held out inducements for them to become cultivators, and have stipulated to furnish them "with useful implements of husbandry," for the purpose of re claiming them from the savage state. The treaty of 1817 is too explicit on this point to be omitted. The preamble recites, that, in 1808, a delegation of the Cherokee nation signified to the President the anxious desire of one part of the nation "to en gage in the pursuit of agriculture and civilized life, in the coun tiy they then occupied," and that this portion wished for a divis ion of the country, and an assignment of lands for that purpose ; that, "by thus contracting their society within narrow limits, they proposed to begin the establishment of fixed laws and a regular government." Another portion of the tribe wished to pursue the hunter life, and, for diat end, were desirous to remove beyond the Mississippi. The President (Mr. Jefferson) answered, " The United States, my children, are the friends of both parties, and, so far as can reason ably be asked, are willing to satisfy the wishes of both. Those who remain may be assured of our patronage, our aid and good neigh borhood." Such was the preamble ; and it concludes, "Now know ye, that, to carry into effect the before recited promises with good faith," &c, the parties concluded the treaty. I ask, Mr. Chairman, if we have not " assured" them of a permanent residence — if we have not promised them " our good neighborhood ;" and now, that the experiment has so far been successful, and they have made rapid advances in civilization, are we to be told that humanity and their own interests require them to be thrust again into the wil derness? Sir, what vrfll be their condition in the countiy to which it is proposed they shall remove ? The gentleman has de scribed the region, about six hundred miles in length, and two hundred and fifty in width, between the western boundaries of Arkansas and Missouri and the base of the Rocky Mountains, somewhere within the limits of which is to be then- ultimate des tination. The gentleman's plan is to locate the southern tribes among the Cherokees, Creeks, Choctaws, and Chickasaws, who * have already moved. Besides these parts of tribes, the Osages are there ; and the warlike bands ofthe Camanches, Sioux and Paw nees, roam over the vast prairies hi seasch of game, or on their predatoiy excursions. It is now designed to plant a civilized col ony amid a people of these savage habits. They are not hunters, whom we are about to send there. Agriculture is their employ ment. They are not warriors. We have induced them to lay aside the war club and the tomahawk, and to substitute the peaceful implements of husbandry. They have flocks and property of various descriptions. How long can they retain it in the neigh borhood of the warlike tribes I have enumerated ? How long can their schools and their churches be maintained in the bosom of the " wilderness ?" Sir, they will be only objects of plunder to the stron ger and more savage bands around them. They will be overrun ; and, if they resist, it will only provoke extermination. Can they till tile ground when its fruits will ripen only to be gathered and 172 MR. EVANS'S SPEECH. consumed by hordes of savages, who know no law but force, no right but power ? Sir, I firmly beheve they cannot exist in the country to which you are about to send them ; and I can give no countenance to a project which contemplates their removal against their wishes and their remonstrances. We have among the papers before us a very affecting account of the distress and privations which the tribes west of the Mississippi already endure. I will read an extract which has been often quoted, but wliich cannot be too often called to our recollection, from the letter of general Clark: " The condition of many tribes west of the Miss^sippi is the most* pitiable that can be imagined. During several seasons in every year, they are distressed by famine, in which many die for want of food, and during which the living child is often buried with the dead moth er, because no one could spare it as much food as woulftsustain it through its helpless infancy. This description applies to Sioux, Osages, and many others, but I mention those because they are pow erful tribes, and live near our borders, and my official station enables rne to know the exact truth. It is in vain to talk to people in this condition about learning and religion." The honorable gentleman answered this objection in anticipa tion : and what was his answer ? Why, that distress and suffer ing of this description was common among Indians-7-that it is incident to then character, and habits and modes of life*--that it is not more frequent now than it always has been. And is this a sufficient answer? Are we to send a whole people from their abodes of comfort, to scenes of distress hke these, with the cold answer that it is no hardship because such sufferings are com mon ? Because the tribes west of the Mississippi are compelled to endure these distressing privr tions, therefore it is no hardship to send other tribes there to endure them also ! Will such an an swer satisfy benevolence, philajithropy, humanity? Will it alle viate the pangs of the civilized Cherokee, when he consigns his dead wife and his living child to the earth, to be told that such scenes are of frequent occurrence ? And, Sir, how will these sufferings be aggravated by such an accumulation of numbers ? The country does not now afford subsistence enough for its population. How much greater will be the deficiency, when six^ty thousand more are added to its starv ing inhabitants ? The gentleman has said that the countiy is well adapted to their wants, abounoing in timber and water, and ca pable of a high degree of cultivation. If it were so, from the causes I have mentioned, they can never possess and cultivate it in security. We have been called upon, at the present session, to make a military road, of several hundred miles hi extent, upon the western borders of Arkansas and Missouri, and to mount ten com panies of infantry for the protection of the white inhabitants against the predatory incursions of the Indians. The delegate from Arkansas assures us that the security of that frontier depends upon these measures. How much more will the feeble tribes you propose to send still farther into the forests, need your protection ? The gentleman has not taken into his account of .expenses those MR. EVANS'S SPEECH. 173 which will be incurred in keeping up a military establishment in that vicinity, which will be absolutely necessaiy to preserve peace among the different tribes, who will find perpetual sources of discord when crowded together in the small limits assigned them. But, Sir, is the country suited to their wants ? The gentleman must allow me to say, that I repose little confidence in the infor mation he has received upon this subject Descriptions from oth er sources give a different account I will only refer, however, to the opinion of a delegation ofthe Chickasaw nation, who were sent last year west of the Mississippi, " in search of a home." It is among the documents upon our tables. They could find no country to which they would consent to remove, except one small tract which was already occupied. The vacant lands, they said, were not adapted to their convenience. " If we had found a countiy to please us, it was our intention to exchange. It is yet our wish to do so. But we cannot consent to remove to a coun try destitute of a single corresponding feature to the one in which we at present reside." Such, Sir, is the information we have re ceived from the Indians themselves. If they wish to remove, I would furnish them assistance to do it But I would first secure them in their rights where they now reside. I would then fur nish them the most ample information possible of the countiy in which k is proposed to locate them — give them every means of forming tt correct judgment as to their situation and condition in their new abodes, and then leave the decision to them. When, Sir, under these circumstances, they shall decide to re move, I apprehend no objection will be made to it. It has been urged, however, very zealously by the gentlemen, (Messrs. Bell and Lumpkin,) that the great mass of the Southern Indians are now willing and anxious to remove ; but are restrained and kept in awe by the chiefs, and white men who reside among the tribes. Where is the evidence ofthis ? Upon what facts do the gentlemen make the assertion ? Is it to be found in the circum stance that they have uniformly and firmly resisted all your offers and solicitations ? Commissioners were sent last year to negoti ate upon this subject, with instructions so peculiar, that I cannot forbear to advert to them. What were these instructions ? Why, Sir, not to permit their official character to be known, but to ap pear among the Indians as their friends and advisers, solicitous only for their benefit and . happiness. In this mode their confi dence' was to be won. They were not to convene the Indians in council, agreeably to uniform custom whenever negotiations were to be conducted with them, but to see " the chiefs and other influen tial men, not together, but apart, at their own houses ;" and, when other arguments and advice should fail, " offers to them of exten sive reservations in fee simple, and other rewards, would, it is hoped, result in obtaining their acquiescence." So it seems the Indian territory, the property of the whole nation, was to be obtained by oners of " rewards" to the chiefs and influential men, to procure their assent Is this the mode in wliich Indian rights are to be treated ? Bribery to the chiefs ! What is the reason given for not convening the Indians in council? A most remarkable one 15 * 174 MR. evans's speech. truly ! It is in these words : " The past has demonstrated theii utter aversion to this mode, whilst it has been made equally clear, that another mode promises greater success. In regard to the first, the Indians have seen, in the past, that it has been by the results of councils that the extent of their country has been from time to time diminished. They all comprehend this." Now, Sir, it is represented that the Indians are willing to exchange their country, and to remove. If so, why not con vene them in council, as it is by means of councils that the ex- teimof their country has been diminished ? Would they have such an "utter aversion to this mode," if they were really will ing to adopt the measures to which such a mode leads ? No, Siri They see it has been by councils that their country has been diminished, and they are opposed to councils because they are opposed to any further diminution. Upon this subject we have the testimony of a gentleman resi dent among the Cherokees, whom the member from Georgia (Mr. Lumpkin) represents as. worthy of all confidence, and whose word surely he will not deny. I will read an extract of a letter from Mr. Worcester, published among the docu ments of the Senate : ' " There is one other subj'ect on which I think it is due to justice to give my testimony, whatever it may be worth. Whether tb,e Chero kees are wise in desiring .to remain here or not, I express no opinion. But it is certainly just, that it should be known whether or not they do, as a body, wish to remain. It is not possible for a person to dwell among them without hearing much on the subject. I have heard much. It is said abroad, that the common people would gladly re move, but are deterred by the chiefs, and a few other influential men. It is not so. I say with the utmost assurance — it is not so. Nothing is plainer than that it is the earnest wish of the whole body of the people to remain where they are. They are not overawed by the chiefs. Individuals may be overawed by popular opinion, but not by the chiefs. On the other hand, if there were a chief in favor" of remo val, he would be overawed by the people. He would know that he could not open his mouth in favor of such a proposition, but on pain not only of the failure of his re-election, but of popular odium and scorn. The whole tide of national feeling sets, in one strong and un broken current, against a removal to the West." ' With this evidence before me, I must be pardoned when I tell .the honorable chairman, (Mr. Bell,) that I do not repose confidence in the information with which he has been furnish ed, and has presented to the house. It seems to be assumed, without evidence, and against evidence, that the Indians are willing to remove, but are restrained by some overpowering cause. In 1827, the complaint of Georgia was, that the govern ment had neglected its duty, and, instead of adopting a course which would terminate in the removal of the Indians, had pur sued a policy calculated to render their residence permanent There was no complaint then against the chiefs. It was all the fault of government. Well, Sir, we have now a govern ment co-operating1 with Georgia. This ground of complaint is t» mr. evans's speech. 175 removed. Still the Indians refuse to go. Some new reason must be found for their refusal. Sir, would it not be better to inquire into the fact, than to be searching for the causes of that which is only assumed to exist ? Is it not natural and reasona ble that they should be- unwilling to abandon their homes ? Are they not men? Are they not capable of attachments ? Have they no ties to bind them to the land of their birth — to the soil which covers the ashes of their fathers ? Is not their country dear to them ? Sir, in their view, that earth wears a deeper verdure, and the heavens pour a more unclouded radiance, than in all the world besides. It is unnatural, it is unreasona ble, to suppose that they are " anxious" to quit the scenes of their childhood, to seek a new home, far off, in the lands ofthe setting sun. And, Sir, how are they to be removed ? The only project I have seen is that contained in the " Report from the bureau of Indian affairs" to the secretaiy of war, and by hinf transmit ted to Congress. The proposition is, that they shall be remov ed " by contract" — and the recommendation ofthis plan is, that it can be done much cheaper than in any other mode. By contract, Sir ! What, are sixty thousand human beings — the sick, the aged, the infirm, children and infants — to be trans ported hundreds of miles, over mountains, and rivers, and forests, by contract ! by those who will engage to perform the service for the smallest sum ! Are you to hold out such in ducements to long and fatiguing marches — to scanty and cheap provisions ? Will you place these hapless, deceived and abused people at the mercy of contractors, whose only object is gain ? in whose bosoms Indian wrongs and Indian suffering will find but little sympathy ? Sir, if this is the mode in which the measure is to be executed, I will never yield my sanction to it, though the Indians shoulij be willing to remove. No, Sir ! if they must go, let their path be made smooth. If the treasury is to be opened, let it be opened wide enough to relieve all their wants — to render their situation, bad at the best, as tolerable as the exigency will admit. Sir, the question before us, in all its aspects, is one of great and momentous magnitude. It becomes us to pause and con sider well the step we are about to take. If it be at all doubt ful, let us so decide as shall preserve, and not impair, our na- itional character. If we err, let it be on the side of humanity. ; ^n the inaugural address of the present chief magistrate, he assures the country — " It will be my sincere and constant de sire to observe, towards the Indian tribes within our limits, a just and liberal policy ; and to give that humane and- consider ate attention- to their rights and their wants which are con sistent with the habits of our government, and the feelings of our people." Sir, are we about to observe towards them " a just and liberal policy ?", Are we giving a " humane and con siderate attention to their rights and their wants?" This pledge remains to be redeemed.^ If we now turn a deaf ear to the Cherokees, who have appealed to our justice, and claimed 176 MR. evans's speech. our protection ; if this bill shall pass, in its present shape, pro- ' viding no security for their rights, their destiny will be irrevo cably fixed. And how will our conduct toward them bear the scrutiny of an enlightened world? — and the just judgment of impartial history ?> Sir, if we permit these feeble remnants of once powerful nations to be driven from their homes, though it may not reach the same celebrity which history has assigned to that transaction, in the close of the last century, which blotted Poland from the map of nations, yet will it stand upon the same page of injustice and oppression, and receive the same sentence from posterity. It will stand, too, in the annals of the world, by the side of those enormities wliich our mother country has practised in another hemisphere-; and though the poor Cherokee may find no Burke or Sheridan to tell the story of his griefs, and to hold up the picture of his wrongs to the execration of mankind, it will go up to a higher tribunal, where sophistry cannot delude, and where the humblest Indian will be equal to his proudest oppressor^ Sir, it was said by one often quoted upon this floor, (Mr. Jefferson,) and in reference to a subject not dissimilar to the present, " I tremble for my country when I remember that God is just, and that his justice will not sleep forever." And although the particular mode of retribution which was in his mind on that occasion may not now be anticipated, yet let us recollect " that the Almighty has no attribute which can take side with us" in a conflict between power and right — between oppression and justice. The honorable gentleman from Georgia (Mr. Lumpkin) has anticipated a period, when it will be odious to be known as an advocate of the Indian rights. I know not what pretensions the gentleman possesses to the power'of augury — but, in my estimation, he has consulted the stars to very little purpose, if such be the lessons they read him. Before that period shall arrive, you must burn all the records of the government— de stroy the history of the country — pervert the moral sense of the community — make injustice and oppression virtues — and breach of national faith honorable ; and then, but not till then, will the visions of the gentleman assume the form of realities. Sir, if I could hope, as I surely cannot, that any feeble efforts of mine would outlive the brief hour which gave them exist ence, — if I could give perpetuity to anything I can say or do, — there is no occasion I should covet more than that which I now possess. If I could look forward, as I certainly do not, to a long life of public service — to honors and distinctions, — I would forego all for the power to roll back the tide of desolation, which is about to overwhelm these hapless sons of the forest. If I could stand up between the weak, the friendless, the de serted, and the strong arm of oppression, and successfully vindicate their rights, and shield them in their hour of adversi ty, I should have achieved honor enqugh to satisfy even an exorbitant ambition ; and I should leave it as a legacy to my children, more valuable than uncounted gold — more honorable than imperial power. MR. evans's speech. 177 Sir, the crisis in the fate of these people has arrived. The responsibility is upon us — upon us as a House, and upon each of us as individuals. The Indians make their last appeal here. All other sources of protection have failed. It remains with us to decide whether they return in joy and hope, or in sorrow and despair. Shall we listen to their cry ? If we do not, then is their sun about to set, it may be in blood and in tears. Then, indeed, will all human means have failed, and, deserted and abandoned by our government, which had solemnly sworn to protect them, they are commended, O God, to thy sovereign mercy. Extracts from a Letter written- by the Rev. S. A. Worcester to Mr. William S. Coodey, one of the Cher okee Deputation at Washington, dated March 15, 1830, at New Echota, in the Cherokee Nation. Whatever deficiencies there may be in my statements, I shall use my utmost endeavor that nothing colored — nothing which will not bear the strictest scrutiny — may find a place. It may not be amiss to state, briefly, what opportunities I have en joyed of forming a judgment respecting the state ofthe Cherokee peo- jple. It was four years last October since I came to the nation, during which time I have made it my home, having resided two years at Brainerd, and the remainder ofthe time at this place. Though I have •not spent very much of the time in travelling, yet I have visited al most every part of the nation, except a section on the northeast. Two annual sessions of the General Council have passed while I have been residing at the seat of government, at which times a great number of the people of all classes, and from all parts, are to be seen. The statistical information which has been published respecting this nation I hope you have on hand, or will receive from some other source ; it goes far towards giving a correct view of the state of the people. I have only to say, that, judging from what I see around me, I believe that a similar enumeration, made the present year, would show, by the comparison, a rapid improvement since the census was taken. The printed constitution and laws of your nation, also, you doubtless have. They show your progress in civil polity. As far as my knowl edge extends, they are executed with a good degree of efficiency, and their execution meets with not the least hinderance from any thing like a spirit of insubordination among the people. Oaths are constantly ad ministered in the courts of justice, and I believe I have never heard of an instance of perjury. It has been well observed by others, that the progress of a people in civilization is to be determined by comparing the present with the past. I can only compare what I see with what I am told has been. The present principal chief is about forty years of age. When he was a boy, his father procured him a good suit of clothes, in the fashion ofthe sons of civilized people ; but he was so ridiculed by his mates as a white boy, that he took off his new suit, and refused to wear it. The 178 mr. evans's speech. editor of the Cherokee Phoenix is twenty-seven years old. He well remembers that he felt awkward and ashamed of his singularity, when he began to wear the dress of a white boy. Now, every boy is proud of a civilized suit, and those feel awkward and ashamed of their singu larity, who are destitute of it. At the last session of the General Coun cil, I scarcely recollect having seen any members who were not clothed in the same manner as the white inhabitants of the neighbor ing States ; and those very few (I am informed that the precise num ber was four) who were partially clothed in Indian style were, never theless, very decently attired. The dress of civilized people is gene ral throughout the nation. I have seen, I believe, only one Cherokee woman, and she an aged woman, away from her home, who was not clothed in at least a decent long gown ; at home, only one, a very aged woman, who appeared willing to be seen in original native dress ; three or four, only, who had at their own houses dressed themselves in In dian style, but hid themselves with shame at the approach of a stran ger. I am thus particular, because particularity gives more accurate ideas than general statements. Among the elderly men, there is yet a considerable portion, I dare not say whether a majority or a minority, who retain the Indian dress in part. The younger men almost all dress like the whites around them, except that the greater number wear a turban mstead of a hat, and in cold weather a blanket frequently serves for a cloak. Cloaks, however, are becoming common. There yet remains room for improvement in dress, but that improvement is making with surprising rapidity. The arts of spinning and weaving, the Cherokee women, generally, put in practice. Most of their garments are of their own spinning and weaving, from cotton, the produce of their own fields ; though con siderable northern domestic, and much calico is worn, nor is silk un common. Numbers of the men wear imported cloths, broadcloths, &c, and many wear mixed cotton and wool, the manufacture of their wives ; but the greater part are clothed principally in cotton. Except in the arts of spinning and weaving, but little progress. has been made in manufactures. A few Cherokees, however, are mechanics. ' Agriculture is the principal employment and support of the people. It is the dependence of almost every family. As to the wandering part of the people, who live by the chase, if they are to be found in the nation, I certainly have not found them, nor even heard of them, except from the floor of Congress, and other distant sources of infor mation. I do not know of a single family who depend, in any conside rable degree, on game for a support. It is. true that deer and turkeys are frequently killed, but not in sufficient numbers to form any depen dence as the means of subsistence. The land is cultivated with very different degrees of skill. SPEECH or the HON. JABEZ W. 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 substi tuted, 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 ob jects of the bill itself, I should not have troubled the House with any remarks upon it. I would not have mingled in a de bate 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 ofthe President ;" as that report, and that message, contain sentiments with which I do not ac- -cord; as they advance principles, which, in my judgment, are not tenable — principles which, if I understand them correctly, deprive the Indian tribes, to whom they 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 ita 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, defenceless, unprotected people, I have not been willing to give a silent vote upon the proposi tion 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 opin ions and mine, on a topic which is connected with the honor of our common country, and the welfare of a race once power ful, but now weak, and looking to us with anxiety, but not without hope, for that protection which the faith of the gov ernment 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 indtdgence by the government," I solicit the attention of the committee to the language ofthe executive, in his message at the opening of the session, and to the construction or commentary which 180 mr. Huntington's speech. 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 oc cupies ; but, at the same time, and holding his advisers respon sible for it, I shall make this examination with all the freedom of a representative of the people, sworn to support the consti tution of the United States. I noticed with much pleasure, in the inaugural address of the present executive, the following expressive sentence : — " It will be my sincere and constant de sire to observe towards the Indian tribes within our limits a just and liberal policy ; and to give that humane and consider ate' attention to then rights, and then wants, which is consis tent 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 pro tection, in consequence ofthe extension, by the States of Geor gia and Alabama, of their laws over these tribes ; that, in an swer to this application, he stated to them, that their attempt to establish an independent government woidd not be counte nanced by the executive of the United States ; that it was too late to inquire whether it was just for the United States to in clude these Indians and *heir territory within the boimds 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 ofthe President, that the State of Georgia has extended over their country her legis lative enactments, in virtue of her authority as a sovereign, in dependent State, which she and every State embraced in the confederacy, from 1783 to the present time, when their inde pendence 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 an ex plicit avowal made, that the President will not interfere to pre vent 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 In dian affairs of that body, "in the opinion ofthe executive, con stitutional 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 mr. Huntington's speech. 181 by the President, with the consent of his constitutional advisers, and thus made, so far as the executive branch of the govern ment can make them, the supreme law ofthe land, and declared so to be by the constitution, are not to be regarded and enforc ed, if, in the opinion ofthe President, such treaties contain pro visions 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 en croachment 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 interpreta tion ofthe 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 enacted 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 consti tution, 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 ex ecute a law, or enforce the provisions of a treaty, because he has constitutional objections or scruples, constitutes himself the ex ecutive and judicial departments ofthis government Such, in my judgment, is not his 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 any of his prede cessors, or of those wise men who framed the constitution, or of the people of this country; and I have deemed it indispen sable 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 never will be ; and if his scruples are such as to deter him from enforcing it, let him resign the trust which has been 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 ofthe executive ; and, in these days of strict construc tion, it may be feared that few legislative enactments will pass unhurt through this ordeal of presidential discretion 16 182 mr. Huntington's speech. Having thus, very briefly, adverted to the opinions entertain ed 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 loca ted, 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 prom ise 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 tribes, says, though their " emigration should be volun tary, yet it seems visionary to suppose that claims can be allow ed 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 observ ed, that this language is spoken of the Cherokees, who have dwelt on and improved their lands, and seems, at ieast, to im ply that they have no title to the lands within then- 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 not only no acknowledg ment of any title, in the Indian tribes, but the spirit of every part of it is utterly at war with any such acknowledgment. The committee say, (p. 4,) "It is certain that possession, actual or constructive, ofthe entire habitable portion ofthis continent, was taken by the nations of Europe, divided out, and held ori ginally, by the right of discovery as between themselves, and by the rights of discovery and conquest as against the aboriginal in-> habitants. The pretensions of the Indians to be the owners of mr. Huntington's speech. 183 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 posses sion, ofthe whole of the soil then and now occupied by Indian tribes, and admitted no fight in these tribes to any portion of it. The title and the possession being thus in the crown, it permit ted the Indians, in all of them, to be governed or otherwise dis posed of by the coloniarauthorities, Without any interference on its part, until within a short period before the revolution. And in all the acts, first ofthe colonies, and afterwards ofthe 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 per manent 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, con sidered 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 ; any thing which tends to defeat its operation, is a deprivation of right. It is understood that nei ther 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 de nies 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 ofthe na ture and extent of the Indian title to the lands within their boundaries. In my judgment, neither of the positions assumed by the com mittee in their report is tenable. I think it capable of demon- stration,-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, pos sess, and use, according to their own discretion, indefinitely and for ever; 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 184 mr. Huntington's speech. 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 acquir ing that right In other words, the Indians have the 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 posses sion becomes vacant, by voluntary dereliction, or by the extinc tion 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-gov ernment — 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 rights to the soil, from our first knowledge of them. They were found here, 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, every one 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, as 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 prescribe the mode of carrying that right into effect. In that period of society, when countries were formed, and their boundaries fixed, we find that different districts were appropri ated to the native owners, the first occupants, or, in case of va cant or derelict lands, to the first discdverers." 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 dis covery conferred the right of making settlements, of forming es tablishments, whenever the prior right of occupancy was law fully extinguished ; connected with the right of pre-emption, and the ultimate right in fee, whenever the Indian tribes should become extinct. The power to exclude other nations from oc cupying, or making purchases ofthe 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 tiie uniform course adopted by the crown of Eng- mr. Huntington's speech. 185 land, 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 ofthe high est judicial tribunal of this nation. The first attempt to dispose of a whole continent, without re ference to the rights ofthe aboriginal inhabitants, was made in 1493, the year after the discovery of America, by pope Alexan der VI. who gave it to the crown of Spain, on'tbe assumed principle that infidels were unjust possessors of the lands on which their Creator had placed them. This grant was accepted, contrary to the advice of the civilians and crown lawyers of Spain ; and 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 for the good government of their respective dominions, could not be expelled out of them, or deprived of what they pos sess, without doing violence to the laws of God, as well as the laws of nations." The English princes, though they did not acquiesce in the right of the pope to make these grants, made out their commis sions 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 been sometimes said, of appropriating the lands oc cupied 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 right ful 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 dis cretion," and of which they could not be dispossessed by legis lation, but by conquest or cession only. I have said, that the Indian title, thus explained, was always and uniformly admitted by the crown, the 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 ofthis 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 16* 186 mr. Huntington's speech. these instructions, it is stated, "that nothing may be wanting to convince the Indians ofthe 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 reasonable pur chases, 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, 1754, pursuant to these instructions, com missioners 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 Na tions, told the commissioners, "that the governors of Vh'ginia 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 consid ered 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 alli ance and defence 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 proceed ings 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 ofthe crown of England." . In April, 1755, general'Braddock sent instructions to the super intendent of Indian affairs of the king, in which, after mentioning that the Five Nations, in 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 hibes and their succes sors 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, hi considering these countries as the appurte nances 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, what it insists upon, is, that the Five Nations of the Iroquois are, by origin or by right of conquest,.thc lawful pro prietors ofthe 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 mr. Huntington's speech. 187 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 ofthe Alleghany mountains, that countiy 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 gov ernor of Virginia from making grants west of the Alleghany 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 proceed ings 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 ofthe 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 inci dent 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 Low er Creeks, at Pensacola, in May and November, 1765, all recog nise the same right in these tribes, wliich has heretofore been stated : boundaries are established, and all the lands not embrac ed within the limits which include what the Indians reserve to themselves, and which are declared, in these treaties, to belong to them, 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 ofi England ever claim, in practice, a right by discoveiy, but only by\ purchase, to interfere with the Indian title of occupancy, as be- \ fore explained. It admitted, in the fullest extent, the necessity of J 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 ab- I origines, 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 at-\ tention of the committee to the acts and declarations of the colo- ' nies and states, particularly Georgia, and it will be seen that the same principles were adopted, die same rights conceded to the 188 mr. Huntington's speech. Indians, and the same interest asserted to exist in the colonies and states. In June, 1779, the assembly of Virginia resolved, that the com- hionwealth had the exclusive right of pre-emption from the In dians within the lunitsof its own chartered teiritory, 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 pos sess a part of them, and that the rest should remam to the Creeks for ever. In 1738, he made another treaty with the assembled estates of all the Lower Creek nations, in which substantially the same pro visions 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. In 1777, a treaty of peace was made between South Carolina and the Cherokees, to which Georgia was a party, in which the commissioners of both states and the Cherokees exchanged their respective full powers, in which a cession is made by the Chero kees of all the lands east ofthe Unacaye mountain, to the state of South Carohna, as having been acquired and possessed by that state by conquest ; and, in the 8th article, it is declared, that the hatchet shall be forever buried, and there shall be a universal peace and friendship re-established between South Carohna, in cluding the Catawba, and Georgia on the one part, and the Cher okee nation on the other ; there shall be a general oblivion of in juries ; the contracting parties shall use tiieir utmost endeavors to maintain the peace and friendship now re-established ; and the Cherokees shall, at all times, apprehend and deliver to the com manding officer at fort Rutledge, every person, white or red, who, in their nation or settlements, shall, by any means, endeavor to in stigate a war by the Cherokee nation, or hostility or robbery by any of their people, against or upon any of the American states or subjects thereof. Can Georgia enter into a treaty with her own citizens ? give peace to those who are not enemies, but traitors ? In 1783, another treaty was made, between the state of Geor gia and the Cherokee nation, by wliich peace was established, and a permanent boundary fixed. It is unnecessary to go farther. The acts of Georgia furnish unequivocal evidence of her acquiescence in the doctrine, that the Indian tribes within her territorial limits, of right, might maintain the unmolested occupation of their lands. I will now advert to the acts and declarations of the confederated states ; and it will be seen that they entirely coincided, on the subject ofthe Indian title, mr. Huntington's speech. 189 with the principles assumed and acted on by the crown and the colonies. ' In January, 1776, Congress resolved, that no person shall be permitted to trade with the Indians, without license from one or more ofthe commissioners of each respective department In September, 1783, a proclamation was issued by the United States in Congress assembled, prohibiting all persons from making any settlements on, or purchasing any lands inhabited or claimed by the Indians without the limits or jurisdiction of any particular state ; and declaring all such purchases, without the express au thority of Congress, void. In October, 1783, Congress resolved, that a convention be held with the Indians in the northern and middle departments, for the purposes of receiving them into the favor and protection of the United States, and for establishing boundary lines of property. In March, 1785, Congress resolved, that a commission be open ed for treating with the Cherokees and all other Indians south ward of them ; and, in June, 1786, Congress directed the com missioners, who were to hold this treaty for the purpose of ob taining from them a cession of lands, to make such cession as extensive and liberal as possible. In August, 1786, Congress passed an ordinance for the regula tion of Indian affairs, the preamble of which states, that the safety and tranquillity of the frontiers of the United States depend, hi some measure, on maintaining a good correspondence between their citizens and the several nations of Indians. This ordinance regulates the intercourse with the tribes. In November, 1785, the treaty of Hopewell was made. Its provisions need not be referred to. It will be seen, that all the acts of the Continental Congress were predicated on the assumed basis, that the Indian tribes had a just and legal right to the occupancy of their lands, indefinitely, and that the only subsisting right of the government to them, was what has been heretofore stated — the exclusive right of purchase, and the ultimate, contingent right in fee. But the proceedings of the government, after the adoption of the constitution, if valid, put an end to eveiy question .regarding the title of the Indians. In the treaty of Holston, made with the Cherokees in 1791, the seventh article provides, that the United States solemnly guaranty to the Cherokees all their lands not thereby ceded. When this treaty was transmitted to the Senate, it was referred to a committee, consisting of Mr. Hawkins of North Carohna, Mr. Cabot of Massachusetts, and Mr. Sherman of Con necticut, who reported, among other things, that they had exam ined the treaty, and found it strictly conformable to the instructions given by the President of the United States, and that those instruc tions were founded on the advice and consent of the Senate, and that the Senate advise and consent to the ratification of the treaty. Various other treaties with the same, and with other tribes, con tain a similar provision ; and if these treaties have any binding force, it is needless to inquire, what were the rights of the Indians before the conclusion and ratification of these treaties, or what 190 mr. Huntington's speech. were the rights of the government. These solemn compacts contain a promise of security in possession of their lands, and give them a title, if they had not one before. How far it was competent for the United States to enter into these stipulations, I shall not, in this stage of the discussion, inquire. That I shall consider, when I refer to them, as proving that the states are ex cluded from making any legislative enactments to effect them. I have now considered the nature and extent of the Indian title, as recognised by the crown, the colonies, the states, the Conti nental Congress, and the United States, since the adoption of the constitution. On the subject of this title, it only remains for me to show, as I promised to do, that the title, as thus acknowledged, has received the sanction of the judicial department of this gov ernment. In Fletcher vs. Peck, (6 Cranch, pp. 142, 3,) it is said, " The majority ofthe court is of opinion that the nature ofthe Indian ti tle, which is certainly to be respected by all courts, until it be le gitimately extinguished, is not such as to be absolutely repugnant to seism in fee on the part ofthe state." Here is a complete rec ognition of a title ; it is not absolutely repugnant to the idea that the state may be seised in fee ; because the state has the ultimate dominion, the right expectant upon the determination of the state in the Indians : so long as the Indians occupy, the right of the state is dormant ; it cannot be exercised. It is only in the event that the occupancy ceases, or the right to occupy becomes extinct, that the ultimate right ofthe state can be enforced. Judge John son, in the same case, (pp. 146, 7,) says the Indians have theab- solute proprietorship of the sod. " The uniform practice of ac knowledging their right of soil, by purchasing from them, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon tiieir right of soil." But it was reserved to the court, at a later period, to give this subject a great degree of attention, and to investigate, ascertain, and declare the nature and extent of the Indian title. This was done in 1823 ; and the case of Johnson vs. M'Intosh (8 Wheat.) furnishes us with the result. In that case, the chief justice, deliv ering the opinion of the court, says, " The original inhabitants were admitted to be the rightful occupants of the soil, with a le gal as well as just claim to retain possession of it, and to use it according to their own discretion. While the different nations of Europe respected the right of the natives as occupants, they as serted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence ofthis ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all to convey a title to the gran tees, subject only to the Indian right of occupancy. It has never been doubted that either the United States, or the several states had a clear title to all the lands within the boundary line describ ed in the treaty, subject only to the Indian right of occupancy and that the exclusive power to extinguish that right was vested in that government, which might constitutionally exercise it" \"It has never been contended, that the Indian title amounted to mr. Huntington's speech. 191 nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right." After these adjudications, confirmatory of all previous prac tice, legislation, and- treaties, and giving to that practice the solemn sanction of the united opinion of the bench of the supreme court, can it be doubted, that the title of the Indian tribes to the lands they occupy is practically as complete, per fect, and absolute, as that of any citizen of this country to the farm on which he fives, and which has descended to him, after having been in the occupation of father and son, from genera tion to generation ? Can the opinions and statements advanc ed in the report be sustained ? " That the pretensions of the Indians to be owners of any portion of the soil were wholly disregarded by the crown of England ;" " that, where there was reservation of any part ofthe soil to the natives, they were left to be disposed of as the proprietors thought proper ;" " that one of the expedients of the colony was" merely " to appear to do nothing which concerned the Indians, either in the appro priation of their hunting grounds, or controlling their conduct without their consent ; that this was the general principle of action ; and that, in all the acts, first of the colonies, and after wards by the states, the fundamental principle, that the In dians had no rights by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either ex pressly or by implication ;" " that the Indian boundaries, defin ed by treaties, were merely temporary ; that the practice of buying Indian titles is but the substitute which humanity and expediency have imposed, in place of the sword, in arriving at the actual enjoyment of property, claimed by the right of dis covery, and sanctioned by the natural superiority allowed to the claims of civilized communities over those of savage tribes;" " that the principle was adopted, that they had no permanent interest in their hunting grounds ;" " that treaties were but a mode of government, and a substitute for ordinary legislation, which were from time to time dispensed with ;" " that the tribes were indulged in the ' partial' enjoyment of their ancient usages;" "that the essential point in the policy of Georgia was, that the Indian reservations should be gradually contract ed within such reasonable limits, that no part of the country should continue uncultivated ; that her policy, in this respect, was a part of her rights, and that any thing which tended to defeat its operation was a deprivation of right." I will pursue these quotations no farther. They are negatived by history, by authenticated records, by universal usage, by legislative acts, and by judicial determinations. Having thus disposed ofthe question, what is the nature and extent of the title of Indians to the lands which they occupy; and having shown, I hope, that it is one which, for all practical purposes, is absolute, and limited only by the right of the gene ral government, of exclusive purchase, and of the reversionary 192 mr. Huntington's speech. interest in fee ; I proceed to inquire into and answer the ques tion, Have the states, in which these tribes reside, the power to extend their legislative enactments over them, and thus to abolish, among these tribes, the power of self-government, and the laws, usages and customs, by which their affairs, from time immemorial, have been regulated ? If I do not very much mis take, an examination of this subject will result in an entire conviction, that no such power has ever existed,nor does any such power now exist. The advocates of this power insist upon the* right claimed and possessed by the crown to- exercise it while the United States were colonies ; that, by the declaration of Independence and the treaty of peace, this power, this right of sovereignty and legislation, was transferred to the states, as sovereign, in dependent communities ; that it has never been surrendered by the states to the federal government, but is rather guarantied and secured to them by the constitution under which that government is founded. I take the liberty to say, that, in my opinion, but one of these propositions can be sustained, and even that is by no means free from doubt. I refer to that which assumes that the rights of sovereignty and legislation (whatever they were) became vested in the states individually, upon their becoming indepen dent of the crown. To say the least, it might be contended with some plausibility, that these rights became vested in the confederated union first, and afterwards, in the government formed under the constitution, rather than in the individual states. Hence the cautious remark of chief justice Marshall, (8 Wheaton, 585,) "It has never been doubted that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, sub ject only t6 the Indian right of occupancy, and that the exclu sive power to extinguish that right was vested in that govern ment, which might constitutionally exercise it." Hence the con flicting claims of the United States, and the individual states, to unappropriated lands, wliich were finally adjusted by cessions from the latter to the former. But I do not propose to agitate or discuss that point. My attention will be directed to the other propositions necessary to be sustained by the advocates ofthe rights ofthe states. If the crown had a lawful right to exercise jurisdiction over the Indian tribes without their consent, it must have been de rived either from discovery or conquest. As to the latter, (the right by conquest,) it is very obvious that it has no application to these tribes. There are two reasons which would seem to be conclusive on the subject. One is, that no conquest was ever made of them ; but if there ever was a right by conquest, it is very clear, that it was surrendered by the crown, in the treaties which were made with them. In these compacts, the Indians were regarded as possessing the power to make them ; they were treated as lawful and neces sary parties to them ; then claim to territoiy was acknowledg- mr. Huntington's speech. 193 ed ; boundaries were fixed ; and pledges given that no inter ruption, no interference with their respective territorial limits, as settled by these treaties, should be allowed. To assert an unlimited right of sovereignty and legislation in the crown, by the force of conquest, is utterly inconsistent with the admitted necessity that the Indian tribes should conclude treaties with the crown, with the circumstances under which they were made, and with their explicit provisions : hence the Supreme Court say, after speaking of the wars between the whites and the Indians, that the law which regulates, and ought to regu late in general, the relations between the conqueror and con quered, was inapplicable to these Indian tribes. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. The one adopted was, as the In dians receded, the lands which they thus left unoccupied were parcelled out and granted by the crown ; and as to those of which they retained possession, the Indians residing on them were to be considered as occupants, to be protected while in peace, but to be deemed incapable of transferring the absolute title to others. As to the existence ofthis right, as emanating from discovery, it is contradicted by the best writers on international law, by the opinions of the most distinguished lawyers and statesmen of Great Britain and this country, and has been repudiated by the Supreme Court ofthe United States. The rights acquired by discovery, on the part of the nation making it, are, simply, the exclusive right to make purchases of the native tribes ; to make settlements, and to occupy in pursuance of purchases when made ; and an ultimate right in fee, whenever the title of the Indians shall become extinct : and even these rights may be considered as peculiarly and solely confined to the relations subsisting between this country and the aboriginal inhabitants, and do not exist, and are not applicable to the case of any other community of native tribes. — What is called the sovereign power of the nation discover ing the country, consists in the particulars above mentioned. This attribute of sovereignty, the sole right of purchase, and the ultimate ownership in fee, grows out of the fact of discovery ; and, so far as it exists, it takes so much from the sovereignty and independence of the Indian tribes. But the power to legislate, to extend its laws over the territory discovered, is confined to its subjects when they make purchases and settle ments, and grows out of the obvious principle, that these sub jects, purchasing, as they must, with the consent of their own sovereign, when they remove and occupy the lands purchased, carry with them the laws under which they previously lived, and in return for the protection which they receive, as con tinuing subjects of their sovereign, become amenable and sub ject to such legislative enactments as it may be deemed useful and expedient to make. The right to purchase is derived from the crown ; the right to occupy from the purchase ; and the subjection to the legislation of the crown, from the union of 17 194 mr. Huntington's speech. these rights, connected with their national character, and the protection which the nation is bound to afford them. This power to legislate is a branch of the same power which can lawfully make any municipal regulation, a power over its own subjects, settled on territory purchased with its consent, and in regard to which it had the exclusive right of purchase. Let me solicit the attention of the committee to the sup port which these positions derive from judges, lawyers, and statesmen. In 1757, lord Camden, and Mr. Yorke, the king's attorney and solicitor general, officially advised the crown, that the grants to the East India Company were subject only to the king's right of sovereignty over the settlements as English settlements, and over the inhabitants as English subjects, wha carry with them the king's laws wherever they form colonies, and receive his* protection by virtue of his royal charters. Here the true principle of the right to legislate is clearly stated. It is derived from the fact, that the purchasers are English purchasers ; that the settlements consequent on the purchase are English settlements, which form colonies, carry with them English laws, and receive protection by virtue of the patent from the crown ; and this part of the opinion seems to have met with the approbation of the Supreme Court of the United States. In 1755, counsellor Dagge, sergeant Glyn, Dr. Franklin, and Patrick Henry, gave written opinions in support of the same principles. The lands conveyed by the Indian tribes were taken by the grantees, and held, subject only to the king's sovereignty over the settlements to be established thereon, and over the inhabitants as English subjects. The transfer of the sovereignty to the crown of England was made by the same instrument whereby the land was conveyed, and was effectual to pass it ; and the title is under the protection of the laws of England. But it is not necessary to refer to English lawyers, or to times as remote as those just mentioned. The Supreme Court of the United States, whose decisions we ought to regard as sound expositions of the law, have told us, in language not to be misunderstood, what rights were acquired to this country by the discovery of it. In the case of Johnson vs. M'Intosh, the court say, the prin ciple adopted by the great nations of Europe, on the discovery of this continent, by which they should be mutually regulated, was, that discovery gave title to the government by whose sub jects or by whose authority it was made, against all other European governments, which title might be consummated by possession. As a consequence, the nation acquiring the dis covery obtained the right of acquiring the soil from the natives, and establishing settlements upon it. The rights ofthe original inhabitants to complete sovereign ty, as independent nations, were necessarily diminished. And why ? Because they interfered with the fundamental principle, mr. Huntington's speech. 195 that discovery gave exclusive title, ultimate dominion, subject to the Indian right of occupancy, to those who made the discovery. The court say, the United States maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the cir cumstances ofthe people would allow them to exercise ; or, as it is called, a limited sovereignty over them. This sovereignty is not called absolute — unlimited — but a kind or degree of sove reignty limited and confined, and, when taken, as it should be, according to the subject matter, means nothing more than that it existed so far, and to such an extent, as was necessary to preserve inviolate the exclusive right of purchase ; or, perhaps, as was said by judge Johnson, (6 Cranch, p. 147,) the only limitation of the sovereignty of the Indians was the right in the states of govern ing every person within their limits, except themselves. It may further be observed, that in no instance did the crown ever claim the right to legislate for the Indian tribes, except with their con sent, and for their protection against the encroachments of the whites. I have thus endeavored to show that the crown of England neither possessed nor claimed the right, as derived from discov ery, conquest, or otherwise, to extend its laws over the Indian tribes. They were considered as distinct nations or communities, sovereign and independent, excepting that the right to alienate their lands at pleasure was denied to them ; possessing and ac tually exercising the powers of government, through the medium of their own laws, usages, and customs. If this be so, then, by the declaration of independence and the treaty of peace, Georgia ac quired no right to legislate over them, for the crown did not pos sess it ; and, as was well observed by the Supreme Court, " Neither the declaration of independence, nor the treaty confirming it, could give the United States more than that wliich they before possess ed, or to which Great Britain was before entitled." Should it, however, be admitted, that the view thus far taken ofthis subject is incorrect ; that the crown, while the states were colonies, possessed and exercised the unlimited right of sovereign ty and legislation, and that the states succeeded to this right after the declaration of independence ; I will ask the committee to fol low me in an examination of this subject, under the constitution, and will endeavor to show, that, if the states had the power of legislation at any time, it was surrendered at the adoption of that constitution, and that that instrument contains a virtual prohibi tion to the states to extend their legislative enactments over the Indian tribes within their limits. It should be premised, that the right to legislate over these tribes, if it exist, is in its nature indefinite and unhmited ; for, as it has its foundation in the sovereign power of the state, that sove reign power extends to the enactment of all laws to effect the In dian tribes, which could lawfully be made to operate upon its white citizens. And this seems to be the doctrine assumed in 196 mr. Huntington's speech. the report. The right to legislate is spoken of as growing out of the absolute sovereignty of the states within their temtorial lim its, and can of com-se have no limitation in respect to Indians, which it has not in regard to its white population. It must, there fore, be admitted, that, if a state can legislate, so as to affect the Indians at all, it can do so to the same extent, as over its own cit izens. This unlimited power of legislation cannot exist, without anni hilating the Indian title to their lands. I have heretofore attempt ed to show what was the nature and extent of that title ; a right to use and occupy forever ; not to be defeated by legislation, but by cession or conquest only ; and that tin's title was-not acquired by permission, by treaty, by reservations ; but by the original right of occupancy. What becomes of the enjoyment of this right, if a state caii lawfully do as Georgia; Mississippi, and Alabama have done — pass laws, abolishing and declaring null and void all laws, ordinances, orders, regulations, usages and customs of the Indian tribes within tiieir limits ? Cannot these states alter the mode of descent, the regulations of alienation, the rights of possession, as known and practised by the Indians ? Cannot they impose taxes, and subject their lands to the payment of them? Cannot they make legislative enactments, the necessary and inevitable effect of which will be to drive the Indians from the occupation of their teiritory ? Did not the secretary of war foresee this consequence, when he stated to the Cherokee delegation, that, in consequence of the power of Georgia to extend her legislative enactments over this nation, the only remedy for the nation was a removal beyond the Mississippi, where alone could be assured to it protection and peace ; that, while the tribes continue within the temtorial hmits of an independent state, they could promise themselves nothing but interruption and disquietude ; that beyond the Mississippi there would be no conflicting interests ; there the United States could say to them, The soil shall be yours while the trees grow or the streams run ; but, situated where you now are, no such lan guage can be held to you ? What is the meaning of all this, but that, being subjected to the legislation of Georgia, the occu pancy of their territory would be disturbed ; and that the conse quence of their residing within the limits of a sovereign state would eventually be extermination ? Let me read to the com mittee an extract from the speech of a distinguished senator from Mississippi, lately deceased, (Mr. Reid,) which I shall have occa sion to use for another purpose hereafter, delivered in the Senate of the United States, in 1826 : " He was entirely persuaded that so long as the tribes of Indians within any state of the Union were exempted from the operations of state laws, they never would consent to remove from the teiritory they occupy : until our legislation can, in some form or other, be brought to' act on these people, or those resident among them, they will never con sent to abandon their lands. So soon as our laws can reach those abandoned citizens, who setde among them, and become as sav age as the Indians themselves, a powerful motive for their con- MR. HUNTINGTON S SPEECH. 197 tinuance will be removed. It is a first step in a system of remov al ; it is the first step hi any system tending to a change of resi dence." If one of the principles advanced in the report be correct, and the Indian title to their lands he what I have stated it to be, it wholly excludes state legislation. The committee say, speaking of the law of the state of New York, " It was not understood as introducing any new principle. It recognised the general princi ple, that territory and jurisdiction, considered hi reference to a state or nation, are inseparable ; that one is a necessary incident to the Other ; and that, as a state cannot exist without territory, the limits of that territory are, at the same time, the hmits of its jurisdiction." Here the fundamental principle is asserted, that soil and jurisdiction are inseparable from each other ; that the right to the soil in a state, ex vi termini, includes a right of sove reignty or jurisdiction over it. Let an application be made ofthis doctrine to the Indian title. It has been shown, that the title to the territory which they occupy, as against the state of Georgia, is practically an absolute title, and by the United States it has been solemnly guarantied to them. If so, then the attribute of sove reignty, said to be necessarily incident to the right of soil, attaches to it ; for it can hardly be claimed, that what is a correct rule, as applied to civilized nations, ought not to be applied to the Indian tribes. It would seem, therefore, to be a necessary consequence, from the positions taken in the report, that the Indians possess the right of sovereignty over their lands, if they are the owners of the lands ; and I have endeavored to show, in a former part of this discussion, that they are the owners of the soil, for every prac tical purpose of absolute ownership. Another objection to the right of legislation, by the states, is derived from its non user, (if the expression may be allowed,) by Georgia, at all times. It is now more than fifty years since the declaration of independence, and more than forty since the adop tion of the constitution ; and, until within a little more than a year, no such right was ever claimed. Whence this silence? Whence this acquiescence in the legislation of the federal govern ment ? Whence the repeated and reiterated demands upon the government to extinguish the Indian title ? Does the doctrine so lately advanced, of state sovereignty, comport with the language of the report, that " it is understood Georgia will not attempt to appropriate the lands within the Indian reservations without their consent ?" Does it not look to the operation of state laws as a sure and speedy mode of extinguishing actual occupancy, if not of title ? Has it not this for its object ? For what other purpose can the state desire to legislate over them ? Not to draw revenue from them ; not to subject them to the performance of civil or military duties ; not to make them citizens, and amalgamate them with then- white population. The state can have no such ob jects in view. Can any other motive be assigned, than indirectly to force them to remove, by bringing the action of legislation to bear upon them ? If such be the object, if the power existed, why was it never before claimed or exercised ? Why was the 17 * 198 mr. Huntington's speech. federal government to extinguish the title,' to purchase the right of occupancy ? Can this long acquiescence, on the part of Geor gia, in the exercise of self-government by the Cherokees, be ac counted for in any other way than by a full admission that the. rigid so to exercise it belonged to that tribe ?. If the power of legislation exists, how are these Indians to be regarded ? as, citizens, aliens, or denizens ? ¦ Not as citizens, it , would seem ; for the law already passed nearly outlaws them. It does not, indeed, declare them incompetent to sue as plaintiffs in the courts of Georgia, but it has all the practical consequences of outlawry ; for they are deprived ofthe benefit of the only testimo ny which would generally exist, to sustain tiieir legal rights. Not only no Indian can testify for another, where a white man, not re siding hi the nation, is the adverse party, but no descendant of one, however remote, is a competent witness. The rights of per sonal security, personal liberty and private property, so far as it regards the Indians, are, by this law, practically annihilated. It is clear they are not aliens, residing within the jurisdiction of the states ; for if so, whose subjects are they ? They are . not den izens ; for a state cannot make them such. They have not been made citizens by naturalization ; for a state cannot make them such, hi that manner. If, then, they are subject to the municipal regulations of the state, it is because they are, and from the peri od of the declaration of independence have been, citizens of the state. If citizens, they may be prosecuted for all . offences for which the whites may be prosecuted — bigamy, treason, &c. &c. If citizens, they are to be enumerated in the census, and to form a part ofthe basis of representation, ifiaxcd. Now, did the framers ofthe constitution ever suppose, that, by exercising the power of taxation, the whole of the Indian tribes within the hmits of the states, could be represented on the floor of Congress ? Would Georgia have a right to send one of the chiefs, or head men of these tribes, as a representative or senator to the national legisla ture ? The Old Congress did not think so, when it was provided, in the treaty of Hopewell, that the Indians should have the right to send a deputy of their choice, whenever they should think |it, to Congress. They never were, at any time, considered subjects of Georgia ; but if they are now, the}' always have been, since July 4, 1776 ; and a new basis of representation is to be made af ter the year 1831, for the states within whose limits Indian tribes reside. The law of Mississippi, if a valid one, has completely ef fected this object ; for, while it abolishes the laws and usages of the Indians, it confers on them the rights of citizens, and subjects them to the operation of all the laws, statutes, and ordinances of the state ; and the 23d Congress will, perhaps* have one addition al representative from Mississippi, by force of this legislative en actment The power to extend the municipal regulations of the state of Georgia over the Indians, if it ever existed, is taken away by the constitution, and cannot now, consistently with the,provisions of that instrument, be exercised. I suppose that it will be admitted, that the state, by adopting mr. Huntington's speech. 199 the constitution, is bound in good faith, by its provisions, and can not claim to' exercise any rights which, by that instrument, are conferred exclusively on the general government, or prohibited to the state. A denial of this principle would, of course, be a denial of any paramount authority of the constitution, and reduce the government to what it was under the articles of* confederation. By the constitution, Congress have power to " regulate com merce with foreign nations, and among the several states, and with the Indian tribes." Whatever the extent of this power may be, so far as it exists, and may be lawfully exercised, it is exclu sive. It must necessarily be so ; for, if it exist both hi the states and hi the federal government, it becomes nugatory in the hands of either. The regulations of the state and of Congress might conflict with each other ; and which is to yield ? Neither, if the power may be exercised by both. This point has, however, been settled by the Supreme Court. That tribunal has decided, that the power given to Congress, under this clause of the constitution, is exclusive, and amounts to a prohibition to the states to exer cise it. I shall not stop to comment upon the suggestion, that it is not said Congress, shall have power to regulate commerce with the Indian tribes within the states, for the expression is general : it is made to extend to all Indian tribes, and must include those with in, as well as those without, the"' territorial Unfits of a state. But there were no> Indians in the United States who were not, at the time of the adoption of the constitution, within the territorial limits of some state. Such has uniformly been the construction ofthis clause of the constitution, and it has received the sanction ofthe Supreme Court. This power, in my opinion, forbids all control over the Indian tribes within the limits of Georgia, through the medium of her laws. It was, I think, so intended, and must of necessity be so. By the articles of confederation, it is provided, that " the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade, and managing all affairs with the In dians, not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated:" and, hi the ordinance of 1786, this legislative right was expressly adverted to and recognised. ¦ When the constitution was framed, this proviso was purposely omitted. It does not appear in that instrument ; and it is to be recollected, that some of the distin guished men, who signed the articles of confederation, also affixed their signatures to the constitution, and were members of that Congress which enacted the first intercourse law after its adop tion, July 22d, 1790' ; continued by acts of March 1, 1793 ; May 19, 1796 ; March 3, 1799 ; and made perpetual by act of March 30, 1802. In the fifth section of the act of 1790, a provision is made, which evinces inost clearly that the Indians were not considered as within the jurisdiction of any state ; for it provides for the pun ishment of citizens, or inhabitants of the United States, who com mit crimes in the Indian territories, in the same manner as if the offence had been committed within the jurisdiction of the state 200 mr. Huntington's speech, of which they were inhabitants or citizens. The same provision is to be found hi the 4th section ofthe act of March, 1793. And in the first act, sales to states are declared void, though they have the pre-emptive right, unless at a pubhc treaty held under the au thority of the United States. It would seem, from these facts, no other inference could be drawn, than that the framers of the constitution supposed they had effectually excluded state legislation over the Indian tribes ; else why omit in the constitution what was inserted in the arti cles of confederation less than ten years preceding, and which must have been known, understood, and well considered, by the convention in 1787, — the reservation of the legislation of the states. And why, in the first law that was made, in execution of the pow er given to Congress, was it necessary to provide for the punish ment of crimes, committed on lands belonging to the Indians, de clared to be out ofthe jurisdiction of the states, if they possessed jurisdiction? Contemporaneous exposition is generally a safe rule, both in the construction of constitutional and statute law, and, if it be applied here, establishes the principle, that the states had no power of legislation over the Indian tribes within their limits. But let it be examined in another point of view. The proviso Defore referred to, in the articles of confederation, may have been inserted, out of abundant caution, to prevent any inference, that the right of the states to legislate, on other subjects than the in tercourse with and affairs of the Indians, was abridged or taken away ; for it would have been absurd to have granted to Congress the sole and exclusive power of regulating the trade, and manag ing all affairs with the Indians, not members of a state, and then to have added a proviso wliich would have effectually prevented them from the exercise of that power. In this view, the treaty of Holston, of 1785, is binding under the clause of the. constitution, which provides that all debts, contracts, and engagements, entered into before the adoption of this constitution, shall be as valid against the United States, under this constitution, as under the confederation. But the power to regulate commerce with the In dian tribes not only was intended and believed to have excluded state jurisdiction over them, but such is the necessaiy conse quence of the grant ofthe power. It has been before stated to be exclusive, and, of consequence, it denies to the states the exercise of jurisdiction hi the regulation of commerce with the tribes. But a want of power to regulate commerce or intercourse with them, is a want of power to affect them, in any manner, by legis lative enactment. The very circumstance, that intercourse may, and must be had with them in some form, is conclusive, that they are considered and to be treated as a community distinct from our own citizens. Now, how can a state legislate over a body of men, with whom they are prohibited from having any intercourse, except under regulations prescribed by Congress ? There is no subject ; there is neither territory nor person, on which legislation can act If Georgia can of right pass a law which operates upon the tribes, she can enforce it ; for it is idle to ^alk of the right to mr. Huntington's speech. 201 extend its laws to them, if there is no constitutional power to carry them into effect. A right to make and a right to enforce a law must co-exist in the same body. They cannot be separated. Can a law be executed in a territory where an entry on it cannot be made without the assent of a power distinct from that which enacts the law ? Let this question be answered, by a reference to the law of Georgia, approved by the governor, December 19, 1829. The 6th section extends, the civil and criminal laws of that state over the Cherokees, and subjects them to the legal process of its courts. ¦ The 7th section, abolishes all their laws, ordi nances, orders and regulations. Suppose the Cherokees refuse a compliance with these statute provisions ; how is the state to enforce them ? If process is issued, can the ministerial officer go into their territory to serve it ? What says the intercourse law of March, 1802, sec. 3 ? "If any citizen of a state or territory, or other person, shall go into any country .which is allotted or se cured by treaty to any of the Indian tribes south of the river Ohio, without a passport," obtained in the manner specified in the act, " he shall forfeit a sum not exceeding'fifty dollars, or be imprisoned not exceeding three months." Would the process of the state of Georgia alone be a protection to an officer who should go among the Cherokees to execute it? Would it save him from the penalties of this section of the intercourse law? Would it be " a good plea in bar," to an action of debt to recover the penalty, or to an indictment for the offence ? Suppose the laws of Georgia to authorize the assessment of a tax upon the Cherokees ; could the tax-gatherer go into their nation and take their property, to satisfy it? Look at the fourth section of the act of 180'2 : "If any citizen, unauthorized by law, and with a hostile intention, shall be found on any Indian land, such offen der shall" be subject to a pecuniary forfeiture, and imprison ment, and, " where property is taken, shall pay for it twice its just value." Would the law of Georgia save him from these penalties and forfeitures?. Would it be an available defence, in suits brought to recover and enforce them ? The 12th section of the law of Georgia makes it murder to take the life of any Indian residing within the chartered limits of Georgia, for en listing as an emigrant, &c. contrary to the laws and customs of the Cherokee nation. Should there be a violation of this section, and its penalty exacted, which is death by hanging, what would be the consequence ? Turn again to the intercourse act, sec. 6 : " If any citizen or other person shall go into any town, settle ment, &c. belonging to any nation or tribe of Indians, and shall there commit murder, by killing any Indian, &c. he shall suffer death." Would the warrant of execution, issued under the law of Georgia, be a justification ? Would this be an available " plea in bar ?" Is this intercourse law one made in pursuance of the consti tution? If it is, it is the supreme law of the land. Let me then inquire, what is the meaning of the expression, "commerce with the Indian tribes?" The Supreme Court have given an 202 mr. Huntington's speech. explanation ofthe phrase. Theysay, " Commerce undoubtedly is traffic, but it is something more ; it is intercourse." As used in the constitution, "it is a unit, every part of which is indica ted by the term. It cannot stop at the exterior boundary line of each state, but may be introduced into the interior. In the regulation of trade with the Indian tribes, the action ofthe law, especially when the constitution was made, was chiefly within a state. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states." What is this power ? " It is the power to regulate, that is, to prescribe the rule by which commerce is to be gov erned. It is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescrib ed in the constitution. It is vested in Congress, as absolutely as it would be in a single government, having in its constitution - the same restrictions on the exercise ofthe power, as are found . in the constitution of the United States. As it implies, in its na ture, full power over the thing to be regulated, it excludes, ne cessarily, the action of all others that would perform the same operation on the Same thing." The power, then, given to, Con gress, is to prescribe the rule by which intercourse with the In dian tribes shall be governed, and excludes the action of all others. Now, can a state legislate over a territory, or a people, where both these subjects of legislation are within the exclusive control of Congress, so far as the constitution and treaties have given this control? What kind of legislation is that, which is made to operate upon a community, with whom the law makers are not even permitted to have any intercourse ? It seems as though it were impossible successfully to contend, that tribes of Indians could be brought under state laws, when they are without the reach even of ordinary commerce with the states. But another view may be taken of this part of the subject. The right to regulate Intercourse with the Indian tribes includes a right to prohibit it altogether, or to place it under certain mod ifications, as the intercourse law of 1802 does. Now, Congress have exercised the power to prohibit commerce or intercourse with foreign nations: they did this when the embargo and non- intercourse laws were passed. These laws have been adjudg ed valid by the highest judicial tribunal in the country. Now, if, under the clause which gives to Congress the right to regu late commerce with foreign nations, all intercourse may be pro hibited, surely the same thing may be done, as it relates to the commerce with the Indian tribes. And a power to prohibit all intercourse is a power which excludes state legislation ; for a state law cannot be executed where there is no lawful right to enter into the Indian territory to enforce it. But let us examine this clause a little further. It is very ob vious, that the framers of the constitution supposed that the Indian tribes were a community distinct from the ordinary cit izens of a state. They provided for the regulation of commerce with foreign states, between the states, and with the Indian tribes, that is, with a people not foreigners, not members of MR. HUNTINGTON'S SPEECH. 203 the Union, but distinct from them, called tribes. They did not profess to regulate intercourse between citizens of the same state. If, however, the states, by virtue of their sovereignty, can legislate over the Indians, it is because they are members of their community, citizens, persons living within their jurisdic tion ; and thus the power given to Congress to regulate trade with them is annihilated. They are no longer tribes ; they lose that distinctive character and appellation, when they are claimed to be members ofthe state ; and thus this clause in the constitu tion is a dead letter ; it means nothing. One observation further on this part ofthe subject. The con sent given by the states, in the constitution, that Congress shall have the exclusive power of regulating the trade with the In dians, is a virtual admission, that they are not citizens or inhabit ants of the states. They are not only called tribes, but are treated as distinct communities, not incorporated with the states ; not apart of their population. Can the United States regulate trade and intercourse with the citizens of a county or a town in any state ? Can they make laws to govern a portion of the inhabitants of a state ? They certainly can do it, if the Indian tribes are citizens of the states within whose hmits they reside. It cannot, however, be seriously contended that the constitution has vested in Congress any such power, as that which would of necessity result, if the Indians are citizens ofthe states. By the constitution, " power" is given to the President, " by and with the advice and consent of the Senate, to make treaties." This power is also exclusive, and, whenever lawfully exercised, supersedes all state legislation inconsistent with it ; for by the same constitution it is provided, "that all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." In pursuance ofthe power thus given, what at least are called treaties, have been made with the southern Indians. I shall endeavor to show that these treaties, or by whatever name they may be called, contain provisions which exclude all legis lation over them by the states within whose chartered limits they are located ; and that these treaties are " the supreme law ofthe land." The treaties with the Cherokees are those to which I shall refer ; for it is from them we have had memorials soliciting pro tection from the legislation of Georgia ; and those made with Other tribes contain similar provisions. That these treaties in terms, and in the fullest and most solemn manner, guaranty to them, forever, all their lands not ceded, is admitted. Any legislation, either of the United States or the states, which would deprive them of their possessions, would, of course, be an infraction of these compacts. No such legisla tion, (if the treaties are valid,) which would produce this effect, directly or indirectly, can be admitted. These propositions need no illustration nor argument to support them. 204 mr. Huntington's speech. But not only is this species of legislation prohibited, but legis lation in every form, and for any purpose, by the states, is equally prohibited. The treaty of Holston, July 2, 1791, was the first one made with the Cherokees, after the adoption ofthe constitution; and the subsequent treaties are considered and declared to be addi tional to, and forming a part of, this treaty. Let me now ask the attention of the committee to several clauses in this treaty. The Cherokees are placed under the protection of the United States, and of no other sovereign whatever: they stipulate not to hold any treaty with any individual state. The United States are vested with the sole and .exclusive right of regulating their trade ; they may punish at their pleasure any citizen of the United States who settles on their lands; all persons are pro hibited from going upon their lands without a passport ; they shall deliver up offenders guilty of certain specified crimes against the citizens ofthe United States, to be punished accord ing to the laws ofthe latter ; and offenders against them shall be punished as though the crimes had been committed within the territory and jurisdiction of the United States. And by the 5th article of the treaty of Hopewell, which in 1790 general Washington declared was in full force, and the provisions of which he felt bound to carry into faithful execution, the Indians are admitted to have the power to punish, at their discretion, and in such manner as they please, those settlers upon their lands, who will not remove within six months after the ratifica tion ofthe treaty. In the face of" these treaty provisions and recognitions,- can the states legislate over them ? Can they exercise an authority over them, even for protection, when that power is confided to the United States? And what does protection imply? Merely security in the enjoyment of their lands ? This term is general, and applies to all their then existing usages and customs. It is to be a protection against all who attempt to intermeddle with them. They have abjured the protection of all sovereignties but the United States. To them is confided the right to regu late trade. To them offenders are to be given up ; by them offenders are to be-punished. And the United States bind them selves to observe all these stipulations. How is it possible that a state can enact a lavv which shall operate, in a territory guar antied exclusively to the Indians, and over a community whose relations are declared to exist only with the United States, and whose local jurisdiction is admitted by these provisions to be exclusive of the federal government ? And, now, in what light are these treaties to be considered with reference to the char acter of one of the contracting parties ? Do they, or do they not imply and admit, the Indian tribes to be independent of, and not subject to, the control of the states ; and do they possess any binding force ? Let us attend to the language of general Washington on this subject. On the 22d of August, 1789, he came into the Senate chamber, and asked the advice of the Senate, among other mr. Huntington's speech. 205 things, on these two points ; " Shall a solemn guaranty" be given "by the United States to the Creeks of their remaining territo ry, and to maintain the same, if necessary, by a line of military posts?" "If all offers should fail to induce the Creeks to make the desired cession to Georgia, shall the commissioners make it an ultimatum ?" To the first question, the Senate answered in the affirmative ; to the second, in the negative. On the 17th September, 1789, general Washington sent a message to the Senate, in which he states, that " it is important that all treaties and compacts, formed by the United States with other nations, whether civilized or not, should be made with caution and ex ecuted with fidelity." After speaking of the practice of the United States with European nations, not to consider any treaty as conclusive until ratified, and suggesting that the same course would be advisable in relation to treaties made with the In dians, he asks of the Senate their opinion and advice, whether certain Indian treaties were to be considered as perfected, and consequently as obligatory without being ratified; and if not, whether these treaties ought to be ratified? The Senate answer by adopting the following resolution : " Resolved, that the Senate do advise and consent that the President of the United States ratify the treaty." Can any language be more expressive of the opinion of the President and of the Senate, that these treaties were of the character contemplated by the constitution, requiring ratification, as made with a nation having the power to enter into them, and therefore as independent, having the power of self-government ? And it is to be observ ed, that the practice, in regard to these Indian treaties, has been uniformly the same from that time to the present. On the 11th of August, 1790, general Washington sent a mes sage 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 Wash ington 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 the treaty of Hopewell. Let me now turn the attention of the committee to the opin ions 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 advocates of the rights of the states, and of what has been called, in modern times, a strict construction of the powers of the general government. These opinions une quivocally support the Indian 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 fob. 18 206 mr. Huntington's speech. lowing language : "A Celebrated writer on the laws of nations, to whose authority British jurists have taken particular satisfac tion in appealing, after stating in the most explicit manner the legitimacy of colonial settlements in America, to the exclusion of all rights of uncivilized Indians, has taken occasion to praise the first settlers of New England, and the founder of Pennsyl vania, in having purchased ofthe Indians the lands they resolv ed to cultivate, notwithstanding their being furnished with a charter from then- 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 pohtical system. Und er 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 be tween 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 under 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 recognised by the Indians 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 ofthis 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 than 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 de sirous of contracting their society within narrow limits, that they may begin the establishment of fixed laws and a regular government ; and for this purpose request 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 Cher okees make a cession of part of their lands to the United States. It is very obviofS, that the only object of this treaty, and the ces sion made under it, was to enable the Cherokees -who remained east ofthe 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, mr. Huntington's speech. 207 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 abro gate both. Was this the view taken of thefe- rights by the com missioners, and by the President and Senate,in 1817 ? Was it not conceded by them all, that the Cherokees had the right to in stitute 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 govern ment of the teiritory north-west of the river Ohio, the fourth arti cle 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 libeHy, they never shall be invaded or dis turbed, 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 diem." 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 aiti cle 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 ofthe 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 acts, 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 states of Alabama and Mississippi are precluded by the acts authorizing them to form a government, and admitting them into the Union, from enacting laws which shall infringe upon the rights ofthe Indians. In the Senate of the United States, in 1826, 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 Alaba ma said, " The road runs through the Indian country, over which the state of Mississippi had no control." 208 mr. Huntington's speech. 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 Mississippi said, " the road did not pass through one seventh part of £hat state, and it was impossible for the state government of Mississippi to have any authority over those lands, till 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 sove reignty ; 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 sovereign ties ?" Mr. Eaton contended that, " in the provisions of this trea ty, there was no cession of property on the part of these Indians; there was not even a cession of sovereignty. They, in their sove reign capacity as Indians, yielded their consent to the United States to open a road. . 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 ofthe principle, that the effect ofthis treaty was certainly of limited ex tent This treaty was concluded before the admission ofthe state of Mississippi into the Union, and the paities to that treaty, being considered as distinct sovereignties, might have imposed on the United States certain obhgations ; from which obligations they could not disengage themselves by any new compacts, entered into with the people of Mississippi, on then- admission mto 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 the powers of other independent na tions, which are not expressly, or by necessary implication, sur rendered up by this treaty, (the treaty of Holston.) I have be lieved, and still do, that under the treaties the Cherokees must be considered a nation possessing like powers with other nations, ex cept so far as they have surrendered their independence to the United States." Are these treaties, thus explained, binding ? If they recognise and declare the Indian tribes, with which they are made, so far in dependent as to possess the right of governing themselves, by their own municipal regulations, as not to be subject to the legis- mr. Huntington's speech. 209 lation of the states, and to have the sole right of occupancy for ever to the lands described in the boundaries specified, are the treaties the supreme law ofthe land ? Had the government ofthe United States the power to enter into and to ratify them ? It would seem to be somewhat novel, that a necessity is sup posed 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 nqt lawfully entered into ; that no power is given by the constitution to make these treaties ; and, therefore, that they are void. Let me ask the attention of the committee to the proofs that they are compacts, which, if not ful filled by us, will subject us to the imputation of violating our na tional 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 eveiy department ofthe government, and by each been considered as binding on the contracting parties. By the Executive. This is necessarily implied in malting 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 successively 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 intrust ed to me by the constitution, in order to cany into faithful exe cution 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 the chiefs should be well satisfied ofthe 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 ofthe rights ofthe 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 recognised by the legislative department of the government. It has passed, from 18 * 210 mr. Huntington's speech. time to time, laws regulating the intercourse with them ; laws making appropriations of large sums of money to carry these trea ties into effect ; and the bill now under consideration proceeds upon the admitted principle, that the Indian tribes have, by trea ties, 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, has made a full recognition ofthe validity of these treaties. It speaks of them as subsisting ; as containing provisions binding on the parties to 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 within whose chartered limits the Indians reside, all sustaining the doctrine that these treaties are the supreme law of the land. I solicit the committee to examine them, in connexion 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 ofthe 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 necessaiy that it should be made by the authority of the United States, and this is all which is necessaiy. 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 pur suance ofthe 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 paities to the constitu tion, 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 trea ties, the hmits 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 cor rectness of an assumed principle, by following it out in its conse quences. What would they be, in the case we are now consid ering, 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 In dians. 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 fulfil the stipu lations contained in the treaties made with us, we are under no obhgation, on our part, to comply with them. If you exceeded your powers, the treaties are at an end. And what would then be the result ? Why, eveiy cession of land made by virtue of them is a void grant. The boundaries which now circumscribe, them mr. Huntington's speech. 211 are no longer fixed and permanent. Every thing conceded by them in these treaties is set afloat. Are the states more especial ly benefited by them prepared for this result ? Are they willing to acknowledge the principle, that no permanent rights were ac quired 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 are 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 ma jority of both houses of Congress for a treaty, wliich requires the assent of two thirds ofthe Senate. If my physical strength were competent to the task, I would submit to the committee some considerations evincing the impoli cy of the passage of this bill, growing out of the enormous ex pense which will attend its execution, and the utter annihilation which it will cause, of the tribes who may remove to their con templated residence west of die 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, hi 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 tiiis nation ; to their present condition as improved hi 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 ob hgations to sustain and protect them where they now are, are de rived from sources, which need not the aid of 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 be fore 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 of the recording an gel, 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 ul cer of infamy : no balsam can heal it. It is the wreck of a ruin ed reputation : no artist can rebuild it. I might pursue the train of thought suggested by my friend from New York. I might as semble this nation before the most august tribunal ever to be 212 mr. Huntington's speech. erected — the tribunal of the last day. Divine inspiration hatb written for our admonition, and I pray that it may not be repeat ed in the retributions ofthe final judgment, Cursed be he thatpos- sesseth himself of the field of the fatherless, and of him that haw, no helper, and the congregated universe pronounce the sentence just. Extract from a Letter -written by the Rev. S. A. Worces ter, Missionary among the Cherokees, dated March 15, 1830. As to education, the number who can read and write English is considerable, though it bears but a moderate proportion to the whole population. Among such, the degree of improvement and intelli gence is various. The Cherokee language, as far as I can judge,.- is read and written by a large majority of those between childhood and middle. age. Only a few who are much beyond middle age have learned. In regard to the progress of religion, I cannot, I suppose, do better than to state, as nearly as I am able, the number of members in the churches of the several denominations. The whole number of na tive members of the Presbyterian churches is not far from 180. In the churches of the United Brethren are about 54. "In the Baptist., churches I do not know the number ; probably as many as 50. The Methodists, I believe, reckon in society more than 800 ; of whom I suppose the greater part are natives. Many of the heathenish cus- -. toms of the people have gone entirely, or almost entirely, into disuse, * and others are fast following their steps. I believe the greater part ofthe people acknowledge the Christian religion to be the true reli gion, although many who make this acknowledgment know very lit-" tie of that religion ; and many others do not feel its power. Through the blessing of our God, however, religion is steadily gaining ground. SPEECH OF THE HON. KENSEY JOHNS, JUN., REPRESENTATIVE FROM DELAWARE, nELIVERED IN THE HOUSE OF REPRESENTATIVES, SITTING AS IN COMMITTEE OF THE WHOLE, ON THE BILL FOR THE REMOVAL OF THE INDIANS, TUESDAY EVENING, MAY 18, 1830. Mr. Chairman: If on this occasion I could discharge the ' duty I owe the State I have the honor to represent, by giving a silent vote, I should forbear trespassing upon the time or the patience of the committee. I had indulged a hope that, in de ciding on questions involving consequences of so much impor tance, there would exist a disposition to afford a favorable op portunity for the exercise of calm and deliberate investigation. But, sir, in this I am disappointed. The anxious impatience of those who advocate this bill constrains me, at this late hour, and under circumstances thus unfavorable, to engage in this debate; and should I accomplish nothing more by my feeble effort than to arrest this hasty action, I shall, in part, have at tained my object. It may be, that, time being gained for de liberation, the principles of justice will be recognised, and al lowed their appropriate influence. Sir, I have examined, I believe without prejudice, the provis ions of this bill. I have viewed the subject in every light, and feel anxious to act in a manner calculated to fulfil all our obli gations, as well to the several States as the Indian nations, who, in their dependent condition, have appealed to us for protection, and rest their claim upon the faith of treaties. I am not insensible to the difficulties and embarrassments with which we are surrounded. Georgia holds our bond, and de mands that the condition be performed ; the Indian nations point to our guaranty, and have confidence in the plighted faith of the republic. Can we, by adopting the course pre scribed by the bill as reported, avoid violating admitted rights ? Shall we not thereby fail to decide upon that which the Presi dent has presented to our consideration ? Has he not invited our attention to more than this bill provides for ? Does he not, in express terms, inform us of the difficulties existing between the Indian nations and the southern States, within whose chartered limits they reside ? Has he not fully and decidedly declared his opinion in reference to the right of the States to extend their laws over the Indian tribes ? Sir, I am not dis posed to imitate the example of the executive ; nor do I feel 214 MR. JOHNS'S SPEECH. inclined to pass beyond the limits of our legislative power, and express a gratuitous judgment on the acts of particular States. They have proceeded upon their own responsibility. It be comes us to guard the national faith, and to be cautious how we impair the obligations of the most solemn compacts. We are called upon as members ofthe United States. In our hands" is deposited the honor, the faith, and the character, of the American republic. Shall we not be faithful to our trust, and sanction only such measures as will accord with national re sponsibility ? We have hitherto boasted of our scrupulous regard to the principles of humanity and justice. Are we will ing to discard their influence, and, in the enjoyment of power, forget right ? Sir, I feel conscious the State I have the honor to represent would not sustain me in any course wliich has the appearance of oppression. Her sons have never failed, in the hour of danger, to support the honor of their country, and're- sist the oppressor — they cannot practise towards others that to which they have themselves refused submission. Sir, I find it impossible, from the best consideration I have been able to give this subject, to yield my support to the bill; and, with a view to obviate the difficulties which must neces sarily attend this enlarged plan of removal, I have offered the amendment which restrains the operation of the bill, and con fines it to the terms of the contract with Georgia. This, I ap prehend, will fully discharge our obligations to that State, pre serve inviolate the national faith, and afford ample protection and security to the Indians. In presenting to the committee the reasons which have in duced me to propose the amendment, I shall endeavor to ob serve as much brevity as is consistent with a proper regard to the importance ofthe subject. It is not my intention to reiter ate arguments which have been, in the course of this debate, enforced with much ability. I have no desire either to excite party feeling, or strengthen any sectional prejudice, but, as far as in my power, to bring to bear upon this question, that calm, dispassionate, and unprejudiced deliberation, which becomes the representatives of freemen ; that our decision may harmo nize with the spirit of our free constitution, and manifest to the world that we are worthy of the civil and religious jirivileges we enjoy. Before entering upon a particular explanation ofthe amend ment I have offered, I would call the attention of the committee to a few important principles, which have an essential influence on the question, and come to us recommended by the weight and authority of the highest judicial tribunal of our country. From the decision of the Supreme Court of the United States, in the case ofthe Society for propagating the Gospel in foreign Parts, we find it is settled that, discovery is the original founda tion of titles to land in America, as between the different European nations by whom conquests and settlements were made. It gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing MR. JOHNS'S SPEECH. 215 settlements. It was a right with which no Europeans could' interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. The re lations which were to exist between -the discoverer and the natives were to be regulated by themselves. In the case of Johnson against M'Intosh, it was decided that, while the differ ent nations of Europe respected the rights of the natives as occupants, they asserted the ultimate dominion to be in them selves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in the possession ofthe natives. These grants have been understood by all to convey a title to the grantees, subject only to the In dian title of occupancy. From these principles, relative to the rights acquired by dis covery, we have clearly defined and explained the origin and extent of the pre-emptive right. This right of pre-emption, vested in the sovereign, was by the sovereign power always regulated. Hence we observe, in the history ofthe early settler ment of this country, the right to purchase the land from the\ natives was derived from the crown, by express and special ) grant ; and, after the colonies were established, the extinguish ment of the Indian title was generally effected by treaties, through the agency of the respective governors. These nego tiations were subject to the control ofthe crown, and conduct ed in that mode which the sovereign thought proper to pre scribe. Thus we find, when, in the year 1763, the colonists violated this settled policy, the king issued his proclamation, declaring that the crown reserved, under its own dominion and protection, for the use of the Indians, " all the lands and terri tories lying to the westward ofthe sources of the rivers which fall into the sea from the west and northwest," and forbade all British subjects from making any purchases or settlements whatever, or taking possession ofthe reserved lands. I have called the attention of the committee to these matters as they were understood in time past, that we may correctly comprehend the nature and extent ofthe title, as it existed prior to the revolution, and which we claim as derived by virtue of the treaty of peace of 1783. It appears, antecedent to that eyent, uniformly to have been considered a sovereign right ; and since that period, the only question has been whether it was 'transferred to the United States or passed to the respec tive States. The Supreme Court has declared that it has never been doubted that either the United States or the several States had a clear title to all the lands within the boundary lines de scribed in the treaty of peace of 1783, subject only to the In dian right of occupancy, and that the exclusive power to ex tinguish that right was vested in that government which might constitutionally exercise it. The several States have generally ceded those lands to the United States. They were occupied by numerous tribes of warlike Indians ; but the exclusive, right of the United States to extinguish their title, and to grant the soil, has never been doubted. 216 MR. JOHNS'S SPEECH. I would here remark, that, immediately on the declaration of independence, each colony claimed and exercised all the powers of a sovereign and independent State, and, prior to the adoption of the articles of confederation, became entitled to the pre-emptive right, as it had existed in the crown, in re lation to the Indian lands within its chartered limits. If we recur to the history of this period, it appears that the respective States claimed and exercised the treaty-making power in the extinguishment of the Indian title. Thus we observe, from the treaty at Dewitt's Corner, on the 20th of May, 1777, the States of South Carolina and Georgia respectively appointed commissioners to treat with the Cherokee nation of Indians. In all the circumstances which attended this treaty, we dis cover the same formality which usually attends such transac tions. The commissioners on behalf of the States are vested with full powers — the deputies appointed by the Cherokee nation are also vested with the same power, in full council. By this punctilious observance of all the forms essentially con nected with the exercise ofthe treaty-making power, the State of Georgia, at a time when she was in full possession of all her sovereign powers, recognised the Cherokee nation; and has, by the terms of that treaty, acknowledged their sovereign and independent national character. After Georgia acceded to the articles of confederation, it was considered that the treaty-making power was necessarily transferred to the United' States, as inseparably connected with, and an essential inci dent to, the right of declaring war or making peace. It is true that, prior to the adoption of the present constitution, doubts were entertained in relation to its exercise as to Indian tribes within the chartered limits ofthe States ; and Georgia protested against it ; but her protest was disregarded, and treaties were made and ratified under the articles of confederation with the Cherokee and other Indian nations. I am aware of the par ticular clause in the articles of confederation which gave rise to the doubts, and induced Georgia to protest against the exer cise of the treaty-making power by the United States, in rela tion to the Indians within her chartered limits. The clause to which I allude grants " to the United States, in Congress as sembled, the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians not mem bers of any of the States ; provided that the legislative right of any State within its own limits be not infringed or violated." Admitting the objections of Georgia to have been well found ed under the articles of confederation, we cannot avoid the conclusion to which we must come, when, on adverting to the clause in the present constitution granting to Congress the power to regulate trade with the Indian tribes, we find it unre strained by any qualification, and unconnected with any pro viso. This unlimited delegation of power, together with that part of the sixth article which declares, that " this constitution, and the laws of the United States which shall be made in pursu ance thereof, and all treaties made or which shall be made under MR. JOHNS'S SPEECH. 217 the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound there by, any thing in the constitution or laws of any State to the contrary notwithstanding," appears to me to remove all doubt, and establishes beyond all controversy the right of the United States. And may I not ask, How can Georgia, after having be come a party to this constitution, object to treaties made and ratified according to the express terms of that compact ? Is it competent, for one State to annul, by her interpretation of the constitution, a power hitherto exercised, and without dispute ? Georgia, sensible ofthe difficulty, endeavors to evade the obliga tion of our Indian treaties, by assuming ground wliich, I appre hend, is not tenable. In support of the new doctrine now ad vanced, we are told the treaty-making power is confined in its action to foreign powers ; and, as it is denied that the Indian nations stand in that relation, the advocates of the bill contend, that the Indian treaties are not what they purport to be. Sir, I should like to hear from those, who have made this suggestion, an explanation of what constitutes a foreign power. The In dians would probably answer an argument founded on so strange a proposition by appealing to the transactions of the past, and ask to be informed how and when their right of self-gov ernment had been surrendered ? But, sir, we are not left in doubt or uncertainty as to the relation the Indian nations sus tain to the Union, or the States within whose limits they are. I admit, under existing treaties, the Indian nations are depen dent sovereignties with regard to the United States ; but I appre hend none can deny that they now are, and always have been, independent of the States. So far as the general government exercises any power over the Indians, the right is derived from treaties, and by the same instruments their sovereignty is recog nised and guarantied. Is it because their intercourse with for eign powers is prohibited, that we refuse to concede their nation al character? Reasoning from similar premises, we should conclude that the several States of this Union were not inde pendent iii relation to each other. If we advert to the restric tion upon the powers ofthe several States, we must admit they are confined within narrower limits than the Indian tribes. The latter have always enjoyed and exercised, in its fullest ex tent, the right of self-government ; none has questioned their power to declare war and make peace ; to regulate their own internal trade ; to enact and administer their own laws, both criminal and civil ; and, in every respect, to maintain their na tional rights within the limits of their own territory. This right to manage, according to their own will and pleasure, their own municipal concerns, we have always admitted, not in conse quence of any concession on our part, but as derived from their ancestors, and guarantied to them by the faith of treaties. Hav ing recognised the right, it does not belong to us to prescribe the peculiar form or mode in which it shall be exercised. It is not our province to decide whether they shall live under chiefs, or enjoy the advantages of a representative government. The 218 MR. JOHNS'S SPEECH. particular form cannot effect the existence of the right. This is a matter, which is exclusively and appropriately under their own control. If, then, I am correct in the view I have taken of this part ofthe subject, how can the claim of Georgia to extend her laws over the Cherokee nation be sustained ? It has been very gravely contended, in the course ofthis debate, that it is a violation of the sovereignty of Georgia for the Cherokee nation to establish an independent government. Sir, I confess I am at a loss to appreciate fully the propriety or justice of the preten sions now for the first time advanced by Georgia. Why is the attempt now made to bring under the operation of her laws the Indian nations, when, for so long a period, she has continued to derive benefit from the numerous treaties made with those tribes, and by her conduct sanctioned their validity ? But it has been alleged, against the right ofthe Cherokee na tion to continue within the territory they now possess, that they have attempted to improve their form of government, and thereby indicate a disposition to meliorate their condition. This has been considered, by very high authority, a violation of that clause of the constitution which declares, that new States may be admitted by the Congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent ofthe Legislatures ofthe States concerned, as well as ofthe Congress. Now, sir, the Cherokee nation, which has always existed independent of the State of Georgia, having in some respects improved their form of government, in the exercise of a clear and undoubted right, neither derived from nor in any way influ enced by the United States, it is said their acting in this man ner, if sanctioned, will be a violation of the constitution. Sir, the source from which this opinion emanates, being no less than the chief magistrate of these United States, and reiterated by the secretary of war, demands for it the most respectful con sideration. We are often induced to consider certain proposi tions sound, because they are advanced by individuals occupy ing situations which add weight and influence to their opinions. Had this constitutional question been of less distinguished ori gin, I should scarcely have considered that it merited refutation. If I do not greatly misapprehend the import of this clause of our constitution, it refers exclusively to the action of Congress, and I am yet to learn when or how we have had any agency or instrumentality in erecting the Cherokee nation into a State, or by what train of argument an Indian nation, which never has been under the jurisdiction of Georgia, by exercising its legiti mate power of self-government, can be charged with violating the rights of Georgia. Sir, I cannot concur in this construction of the constitution, unless I concede to those who maintain it that the Cherokees are within the jurisdiction of Georgia, and never have been, and are not now, in the full enjoyment of sove reignty, and entitled to all the rights and privileges of self-gov ernment. But, that I may stand rectus in curia on this impor- MR. JOHNS'S SPEECH. 219 tant point — the question of sovereignty — I will refer to an argu ment made by the present secretary of war, when a member of the Senate, which is not of very ancient date. That I may do justice to the secretary of war, I will ask the special atten tion of the committee, while I read from his speech, delivered on the thirteenth of February, 1826, in the Senate. The sub ject then under consideration was an appropriation for the repair' of post-roads, and particularly of one through the Indian territory : — " Mr. Eaton of Tennessee said, a treaty had been entered into, in 1801, between the United States' and the Choctaw Indians. The ques tion of State rights had not then arisen, and the government of this country was in the hands of Mr. Jefferson. Under such an administra tion, no attempt would have been made to enter into a treaty with a dis-- tinct sovereignty, that went to invade the principles of the constitution. By the second article of that treaty, the Indians gave their consent that a wagon road should be constructed through their lands ; and if the idea was a correct one, that to make such a road was unconstitutional, was it not strange that the Senate should not have conceived this idea in 1801, or, if they did conceive it, that they should have acted as they did ? Mr. Eaton said, a road had been made from the State of Georgia to the State of Tennessee, which was at present the main highway between these two States. Ever since this government had existed, Mr. E. said, they had proceeded on the principle that the Indians are a distinct sove reignty. 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? If there was any force in the objection urged by the gentleman from Georgia, at least so far back as 1801, something would have been thought about it in the Sen ate when they entered into this treaty with the Indians, by the second article of which, privilege is granted to the United States to open a road through their country. Mr. Eaton contended, there was no cession of property, on the part of these Indians, by the provisions of this treaty — there was not even a cession of sovereignty. They, in their sovereign capacity as Indians, yielded their consent to the United States to open a road. The United States could not give the State of Mississippi any sovereignty over it." Such were the sentiments of the present secretary of war, in the year 1826. What new light has been shed upon the sub ject, which could operate so great a change in his views since that period, it is not for me to explain. I would ask the indulgence of the committee, while I direct their attention to a few extracts from a speech delivered by Mr. Reid, a senator from Mississippi, on the subject of our Indian relations, the 20th of March, 1826. I refer to it as expressing the sentiments of an individual, in reference to the State he rep resented, and who had every opportunity of being well ac quainted with the true state of public opinion on this subject : — " Mr. Reid said, the resolution which he was about to offer to the Senate involved some principles in which several of the States of this Union had a joint and something like an equal concern. It related to the Indians, and to the light in which they were to be viewed by this government. It was well known, Mr. R. said, that there were sev 220 MR. JOHNS'S SPEECH. eral States of the Union, a great portion of whose territory is in the oc cupancy of the aboriginal inhabitants ; and he presumed it was already known to the Senate, that more than half the State of Mississippi, which he had the honor in part to represent, is still in the occupation of the Indian tribes — the Choctaw and Chickasaw nations. In regard to the action of the State laws on these people, there never had been any diffi culty ; nor was it ever sought, on the part of the State of Mississippi, to extend its jurisdiction over them ; but there were evils, growing out of their situation in this territory, which required the consideration of fovernment. Mr. R. said, he did not mean to call the attention of the enate to the actual condition of these people, who inhabit the terri tory within the limits of a State ; his object was to call the serious con sideration of the Senate to the condition of our own citizens, who, after having committed crimes or contracted debts, locate themselves amongst these Indians, and consider themselves as beyond the jurisdiction of our laws. This was a state of things, which, Mr. R. said, the Senate would easily perceive, was not to be endured ; and if there was stay thing within the competency of the Senate to remedy the evil, it was time it should be done. These persons are exempted from the jurisdic tion of the laws of the Union, and cannot be reached by the laws of the State of Mississippi. It had occurred to him, therefore, that it was a duty incumbent upon him to call this matter to the consideration of the competent authority of the United States. He repeated, it was not sought, on the part of the State of Mississippi, or by her senators in this House, to enforce the action of the laws on the Indians them selves ; they did not claim to consider them as subject to their operation. The Indian tribes have laws and traditionary usages of their own, and are entitled to the patronage and protection of the general government. And Mr. R. observed, the Indian rights are sufficiently secured, and they themselves are protected, in the enjoyment of the lands on which they are located." '' There was, Mr. R. said, another question involved in this matter, which he was very anxious to bring before the consideration of the proper authority of the Union. How far it is within the competency of the State to. extend the action of its own laws, without the aid of the United States, to persons thus circumstanced, is a question somewhat novel, and has never been decided. At the last session of the legisla ture of Mississippi, a proposition was made to extend the civil power of their courts to their own citizens who had contracted debts within the State, and had fled to this savage sanctuary. The matter was deba ted for many days, and it was at last decided that there existed no power in the State to extend the action of its laws in the manner which was sought by the proposition before the legislature. Mr. R. said his own opinion on this point was, that it is in the power of the State to act within its own territorial limits, so far as to serve its own civil process, and the action of its laws, on citizens who may have contracted obli gations. The State decided otherwise, and said it was a matter for the general government; therefore, if there was any remedy on this sub ject to be obtained, it was to be at the hands of the general government, and not by force of any competent authority in the State government." I have adverted to what has heretofore been said, because I apprehend nothing has since occurred to vary the rights of the respective parties. The sovereignty of the Indians was not only admitted, but considered unquestionable by the present secre tary of war ; and from what was stated by the former senator from Mississippi, that State, after many days' debate, decided IViR. JOHNS'S SPEECH. 221 against the right of State jurisdiction. The committee will therefore perceive, that, in objecting to the construction the Pre sident has given that clause ofthe constitution, which refers to the admission of new States, I am supported by respectable authority. If, then, I am warranted in saying, that the Indian tribes are entitled to be considered and treated as sovereign na tions, and that it is not within the competency of the States to extend their laws over them, may I not ask upon what princi ples we can sustain the bill as reported? Surely we are not willing to rely on force, at the expense of right and justice. 1 cannot permit myself to believe that the representatives of twelve millions of freemen will sanction a measure fraught with oppression, and which must inevitably bring disgrace upon our country. I admit the bill does not indicate that force is to be applied. But if we withhold protection, disregard our treaty stipulations, and leave the Indian nations to the operation of the laws of Georgia, Mississippi, and Alabama, this appropriation will come in aid of oppression ; and, although we profess to leave the Indians free to act, none can doubt they must yield, and, however'unwilling, be constrained to leave their homes, and their country, and escape to the wilderness. , The chairman ofthe committee on Indian affairs has endeav ored to sustain the principles ofthis bill, as according with the policy of all former administrations, and particularly recom mended by Mr. Jefferson ; as further sanctioned by every feeling of humanity, and calculated to improve the condition, and pro mote the future prosperity of the Indian tribes. In support of his argument, he has referred to what Mr. Jefferson alleged as an argument in favor of the purchase of Louisiana. It occurred to him, as a reason why we should possess the valley of the Missis sippi, and the range of country west, that, in addition to other advantages, it would afford u retreat for the'Indian tribes, at some future period. But none can believe he ever would have advocated a removal ofthe Indians ofthe character of that now contemplated, especially when we regard the sentiments con tained in his letter to general Moultrie. He there declares his determination to execute our treaties with the Indian tribes in good faith, and, if necessary, he would use the force ofthe na tion for their protection. If, Sir, we turn our attention to the policy of former administrations, we shall discover nothing to sanction this bill. General Washington adopted the principles and practice of the early settlers and colonial governors, and, as has been stated by an able writer on this subject, " Mr. Jefferson was a member of his Cabinet, and doubtless inti mately conversant with these fundamental measures. The five first Presidents of the United States made treaties with the Cherokees, all resting on the same acknowledged principles. Mr. Jefferson, the third President, having pursued the policy of general Washington on this subject with more undeviating zeal than on any other subject what ever — being about to retire from the chief magistracy — and standing midway between the era of 1789 and the present year, wrote a fatherly letter to the Cherokees, giving them his last political advice. This 19* 222 MR. JOHNS'S SPEECH. letter is preserved by them in their archives. A negotiation is held with them on their own soil, or, as the title has it, ' within the Chero kee nation,' under the direction of the fifth President of the United States. The letter of Mr. Jefferson is produced and incorporated into a treaty. It is therefore adopted by the people of our land, and approv ed as among our national muniments erected for the defence of our weak neighbors. What adds to the singularity of the transaction is, that this letter, reaching backward and forward through five adminis trations, is adopted in the fifth by a negotiator, who is now the seventh President of the United States ; thus bringing all the weight of per sonal character and political consistency to support as plain stipulations as can be found in the English language or any other."* Sir, this letter of Mr. Jefferson, thus adopted and sanctioned, speaks a language not to be misunderstood. It declares the United States will always regard both branches of the Chero kee nation as their children. It says that all " the individuals of the Cherokee nation have a right to their country ; and, there fore, if a part of the nation surrenders to the United States its right to lands east of the Mississippi, it must receive from the United States a right to lands west of that river. It says that those Cherokees who choose to remove, may emigrate with the good wishes and assistance of the United States, and that those who remain may be assured — (yes, in the words of Mr. Jefferson, adopted by general Jackson) may be assured of our patronage, our aid, and our good neighborhood." Sir, I appre hend, after reading this letter, no doubt can exist in relation to the sentiments of Mr. Jefferson, or the policy of former admin istrations. During that period, it may truly be said, those In dian nations enjoyed all their rights and privileges unmolested ; they then sat under their own vine and their own fig-tree, and there was none to make them afraid. They relied with confi dence on our national faith, " because no President of the United States had broken faith with Indians." Sir, I feel confident no preceding administration has ever countenanced or sanctioned the right of legislation now assum ed "by the States ; or ever dreamed of robbing the Indians of their rights. That was reserved to mark the era of this administra tion ; and, in the eloquent language of Pitt, who, in the day of our adversity, boldly and fearlessly asserted our rights in the British Parliament, when the advocates of power claimed the right to oppress our forefathers in their weak and dependent condition, I may with propriety add, " With the enemy at then- back, with our bayonets at their breasts, in the day of their dis tress, perhaps the Indians will submit to the imposition, but it will be taking an unjust and ungenerous advantage." Such was the sentiment expressed by a British statesman in our behalf, when the government was appealed to, as authori zing the oppressive exercise of power against right ; and am I not warranted in applying it to the present condition of the In dian tribes, especially those over whom the States assume the * See Letters of William Penn, No. XII MR. JOHNS'S SPEECH. 223 right to extend their laws ? And, Sir, is not the parallel more striking, when we call to mind the measure proposed by the indi vidual, who holds the station of superintendent of Indian affairs ? Has he not recommended, in his communication to the President, wliich has been laid before us, to place near those Indian tribes an imposing military force, which would overawe the chiefs, and enable the inferior class to enrol as emigrants, by protecting them against the influence of those who exercise authority over them ? From the information communicated by the executive, extraordi nary means have been adopted, and no effort left untried, to in duce the Indians to emigrate. Secret agents have been specially instructed, and- attempts have been made to operate on the red man in the line of his prejudices. Has not every attempt proved unsuccessful ; and, notwithstanding the means which have been resorted to, have we not, in the memorials on our tables, enough to satisfy us that no impression has been made ? I would now briefly examine the humanity of this project. The extensive operation of this bill, embracing the number and involving the fate of not less than seventy thousand Indians, is of itself enough to create doubt and excite anxiety as to the conse quences likely to result from its adoption. It may be that the ab sence of all information, as to the manner in which the removal of so great a multitude is to be conducted, and an entire ignorance of the nature or peculiar adaptation of the country designed for their occupation to afford the necessary means of subsistence, preclude my forming a satisfactory opinion. But, when called upon to sanction so important a measure, supposing we have the right, we certainly should have, from the best source, accurate in formation, that we might be able to exercise intelligent legislation. Sir, I apprehend the execution of the measure contemplated by the bill, will afford, by sad and melancholy experience, an amount of suffering and distress, which, could we now realize it, would make us shudder, and recoil from this ruinous and disgraceful project Truly, it may be said, we are about to take a step hi the dark — and who can assign any good reason why, at present, we should thus eagerly embrace this visionary system ? The advo cates of the bill have attempted to sustain it, as I have already stated, on principles of humanity, and endeavored to enforce their arguments by portraying the present condition of the Indian tribes as degraded, and exhibiting the extreme of wretchedness. I regret that it should have been considered necessary to connect with this description remarks tending to impugn the motives of those, who have been instrumental in advancing the cause of civ ilization, and extending the influence of moral and religious prin ciples. Sir, I did suppose, if any unkind feeling existed towards these great and good men, whose names and characters would do honor to any age and coimtry, their peculiar respectability, and unquestioned and disinterested pliilanthropy, would have shielded them from an attack such as we have heard in this debate, denounc ing them as hypocrites, fanatics, and zealots. Surely, when such epithets are thus applied, we, who entertain far different opinions of those benevolent individuals, who have hitherto acted in union 224 MR. JOHNS'S SPEECH. with former administrations, and as the faithful almoners of the public charity and bounty ofthe government, caimot avoid repel ling the charge, and entering our solemn protest against the un founded aspersion. Sir, I should have thought it enough, after all their toil and labor, when they were about to realize the ac complishment of that object so desirable to every friend of hu manity, and rejoice in the melioration of the savage, that they should have to witness the destruction of their best hopes, and submit to the inexorable mandate which consigns the Indian back again to the habits of the hunter, and the wild and uncultivated region of the wilderness. And is this the condition favorable to Indian civilization and reform ? Surely we are determined to re ject, not only the practice of former times, but all past experience. Civilization is the result of restriction and necessity ; and, if I mistake not, man more readily casts off than yields to its influ ence. Sir, if I could control the measure now under discussion, I should be unwilling to disturb those remnants of former times, or countenance, in the shghtest degree, this novel mode of Indian civilization. But, sir, from the peculiar relation hi which the United States is placed in regard to Georgia, I feel willing to comply with the terms of that contract, and for this purpose have submitted an amendment which provides the means, but at the same time pro hibits their application, unless the object can be obtained peacea bly and on reasonable terms. I shall, after having thus detained the committee much longer than I intended, endeavor to confine the few additional remarks I have to submit within as concise a statement as practicable. And, in the first place, I would ask the attention ofthe committee, for a few moments, to the unjust and unequal operation of the bill, in reference to the obhgations and relation of the United States to the respective States, within whose hmits the Indian tribes are situated. The bill, without making any distinction as to the mode or manner in which the expense of extinguishing the Indian title is to be defrayed, embraces all the Indians with whom we have treaties, and requires the title to be extinguished, and the consideration to be paid out of the treasury of the United States. Now, sir, we stand in a very different relation hi respect to our obhgations to Georgia, and to Alabama, Mississippi, and Tennes see. In the former, we are bound to extinguish the Indian title, and to defray the expense thereof, when it can be done peaceably and on reasonable terms : in the latter, we are under no obhga tion whatever. In Alabama and Mississippi, the reversionary in terest, when the Indian title is extinguished, belongs to the United States ; and I cannot understand either the propriety or necessity of increasing the quantity of vacant land hi those States, when there is already more surveyed, and in the market, than can be sold for many years, probably in half a centuiy. I cannot be mistaken ; because, on referring to the official statements, I ob serve, in Mississippi, the amount of sales, after deducting lands reverted and relinquished, is 1,155,562 acres, when the quantity surveyed amounts to 8,733,928 acres ; the quantity purchased by MR. JOHNS'S SPEECH. 225 the United States being 14,188,454 acres, the quantity of land un sold the first of January, 1826, was 11,643,275 acres. In Alaba ma, the quantity purchased by the United States is 24,482,159 ; the amount sold, deducting lands reverted and relinquished, is 3,496,369 acres; the quantity of land surveyed is 22,602,754 acres, and the quantity of land unsold is 20,268,863 acres. But, sir, if we advert to the aggregate amount of land, to which the Indian title has been extinguished, and which is now in our power to bring into the market, the inexpediency of expending the public treasure to enlarge the quantity, must be apparent to every one. Sir, the quantity of land in the several States and territo ries, to which the Indian title has been extinguished, amounts to 261,695,427 acres ; the amount sold, from the 4th of July, 1776, to 31st December, 1825, deducting lands reverted and relinquish ed, was 19,239,412 ; the quantity surveyed, 138,988,224 ; and the balance remaining unsold being 213,591,960 acres, on the 1st of January, 1826. Sir, I cannot comprehend why we are now urg ed to remove the Indians from land they occupy in the new States, when it is manifest we have already more vacant land than we can find people to settle and cultivate ; and more than we can dispose of, by sale, for a century to come. Sir, if we adopt the bill, and remove the Indians, we gain no advantage by the result, but rather impair the value of the public domain, and increase the difficulty and expense of their protection and support, in the remote country where it is proposed to send them. With respect to the Indian title to land in Tennessee, as the United States has relinquished the reversionary interest to that State, I cannot con sent that the expense of extinguishing it should be defrayed out ofthe treasury ofthe Union. Such has not been the practice in relation to the old States, and I can see no good reason why it should be adopted in favor of Tennessee. From the best consideration I have been able to give this sub ject, it appears to me there is no claim upon the United States ex cept that which arises from the contract with Georgia in 1802. And, in reference to that, our undertaking is conditional : it is not absolute. The amendment I have proposed does all we can do towards its execution, andytf adopted, will relieve us from much difficulty. Sir, I fear the consequences that must result from passing the bill. The magnitude ofthe undertaking, and the enor mous expenditure it must occasion, present it as a doubtful, and there certainly do exist strong reasons to apprehend it must prove a dangerous and ruinous experiment. The chairman of the committee on Indian affairs has formed his estimate of the expense on premises which must prove illusory. He has pre sented a calculation based on the present low price of provisions in that country ; but when seventy or eighty thousand Indians are removed there, I should anticipate a very different result. We may, if we are not blind to the occurrences ofthe last war, derive important information from the difficulty then experienced in af fording subsistence to but a small force on our frontiers. I can not concur in the accuracy ofthe estimate, which has been made hy the gentleman from Tennessee, when he informs us the aver- 226 MR. JOHNS'S SPEECH. age cost per head will not exceed eight dollars. If we advert to the expense incurred in the removals which have been made, the amount expended considerably exceeds that sum. I would direct the attention of the committee to the information communicated in answer to a resolution of the House, wliich passed some time since. We there have it stated, that Brearly's party of Indians, hi 1827 and 1828, cost the government for their removal upwards of $40 per head ; that the expense of supporting them one year was $24 22 per head. Now, sir, we must add to this the sum required to extinguish the Indian title, and $30 to each warrior for presents ; as also the funds necessary to pay Indian agents and those who conduct the emigrants. Should the terms of the bill be complied with, and all the Indians with whom we have treaties be removed, the number caimot be less than eighty thou sand. All circumstances considered, if we pay a fair compensa tion for the Indian improvements, the sum which must necessari ly be expended cannot be reduced below eighteen millions, and probably will amount to twenty. Now, sir, how are we to re ceive an equivalent for this extravagant expenditure of the pubhc treasure ? The chairman of the committee on Indian affairs has told us the United States will be remunerated by acquiring at least thirty-eight millions acres of land, a large portion of which he has represented as valuable. Sir, I admit that, in Alabama, Mississippi, and Indiana, on the extinguishment of the Indian ti tle, the United States will be entitled to the possession ; but in Georgia and Tennessee, it will be otherwise ; and those States alone will derive all the benefit, the latter contrary to all former practice, without incurring any expense. Sir, from the quantity of land now in the market and remaining unsold, I am inclined to believe, by increasing the amount we shall depreciate the value. Now, sir, the amendment I have proposed will obviate many objections, which, in reference to the bill, appear to be well found ed. If adopted, it will satisfy Georgia. We are not only wiling, but prepared, to comply with the terms of the contract of 1802. It will place under the control of the executive, as a specific ap propriation, the necessary funds, to be applied, when practicable, in discharge of our obhgations to Georgia, and in accordance with the letter and spirit of her own agreement — when the same can be executed peaceably and on reasonable terms. By restricting the bill, as I apprehend it should be, we shall avoid violating the faith of treaties, and present the subject hi a manner calculated to obtain for it a favorable consideration. Wre shall, further, hold out stronger inducements to the Indians to repose confidence, as the prospect of success will be greater, and there will exist less doubt as to our ability to afford subsistence and protection. Sir, the advocates of this extensive and general system of re moving the Indians, appear to me to hazard all, by attempting to accomplish more than is now either expedient or necessaiy. The magnitude and expense ofthe plan contemplated by the bill must arrest and ultimately defeat its execution. The people whom we represent will not sustain the measure ; it cannot, when fully un- MR. JOHNS'S SPEECH. 227 derstood, meet with their approbation or receive their sanction The immense dram upon the treasury of the nation will attract attention, and induce all to examine and consider the subject ¦ and, if I have formed a just estimate of the moral feeling of the' American people, when the sufferings and distress of the Indians shall have filled the measure of their wrongs, and, from the inhos pitable and sterile wilderness to wliich we are about to consign them, shall ciy aloud for vengeance, and proclaim to the civilized world the ingratitude and disgrace ofthe nation thus acting in vi olation of the most solemn treaty stipulations, and regardless of eveiy principle of humanity— then, if not till then, will awake the indignant feeling of freemen, jealous of their country's honor. But we cannot then repair the injury, nor blot from our escutcheon the indelible stain. Sir, it becomes us to pause and deliberate in the most solemn manner, before we adopt this bill. Why this impatient, hasty ac tion, in a matter involving the fate of thousands of our fellow be ings, and the character and reputation of our highly favored and respected, republic ? May I not say more ? — will not our decision have an important influence on the cause of liberty throughout the world ? To us much has been given, and of us much will be required : our station is as conspicuous as it is elevated. The friends of liberty regard us with an anxious, and the opponents with a jealous eye. To us our ancestors have confided a sacred deposit, an inheritance worthy of then' name, and endeared to us by the recollection that it was the purchase of their blood and suf ferings, when they struggled against oppression. Are we thus soon prepared to forfeit our birthright, and sacrifice all that should be dear to freemen ? Has our prosperity corrupted our feelings, and inclined us, in the enjoyment of power, to forget the principles of justice, and trample upon the rights ofthe weak and dependent ? Does the doctrine of force now prevail, and, because we are strong, shall we embrace principles that would disgrace even despotism ? Sir, I have endeavored, on this important question, to suggest that which to me appears calculated to discharge fully and fairly our obhgations to all parties, and avoids even the appearance of an intention to violate the national faith. This violated, how can we answer for our disregard of obligations, which have such pe culiar strength and influence ; equally binding upon nations as in dividuals, and in their preservation affording the surest and best foundation for the support of our free and republican institutions. All nations acknowledge, without exception, the respect due to the law of good faith ; and, as was justly remarked by one of our ablest statesmen, on a former occasion, " It is observed by barbari ans ; a whiff of tobacco smoke, or a string of beads, gives not merely a binding force, but a sanctity to treaties. Even in Al giers, a truce may be bought for money ; but, when ratified, even Algiers is too wise or too just to disown and annul its obligation. Thus we see, neither the ignorance of savages, nor the principles of an association for piracy and rapine, permit a nation to despisa its engagements. If, sir, there could be a resurrection from the 228 MR. JOHNS'S SPEECH. foot ofthe gallows — if the victims of justice could live again, col lect together, and form a society, they would, however loath, soon find tiiemselves obhged to make justice, that justice under wliich they fell, the fundamental law of tiieir state. They would per ceive it was their interest to make others respect, and they would soon pay some respect themselves, to the obhgations of good faith. It is painful, I hope it is superfluous, to make even the supposi tion, that America should furnish the occasion ofthis opprobrium. No ! Let me not even imagine that a republican government, sprung, as our own is, from a people enlightened and uncorrupt- ed — a government whose origin is right, and whose daily disci pline is duty — can, upon a solemn debate, make its option to be faithless ; can dare to act what despots dare not avow ; what our own example evinces that the States of Barbary are unsuspected of." Sir, I cannot beheve the American people have degenerated, since the time when Ames thus, in the strong and eloquent lan guage I have quoted, enforced the obligation of national faith. Enjoying, as we do, in a peculiar manner, the rich blessings of the purest republican government, and boasting of our civil and reli gious privileges, we cannot stoop so low, nor consent to sacrifice that wliich alone, by its universal influence, guaranties to us secu rity as individuals and as a nation. If we should in an evil hour sully the lustre of the American name, and destroy the last hope of liberty, I would rather share with the Cherokee the fate that awaits him, than encounter the infamy and disgrace which must be our portion. Sir, I cannot yield my assent, nor can I beheve the American people are so lost to all moral feeling, as to sanction a policy thus dangerous hi its consequences, and tending to vio late the rights of others. Sir, I yet indulge the hope that He, whose kingdom ruleth over all, will, as in time past, dispel the dark cloud which hangs in lowering aspect over our political ho rizon. He alone can restrain the wrath of man, and bring order out of confusion. To his hand would I confide the issue, and, having discharged my duty to my countiy and the State I have the honor to represent, await that decision which I trust will pro claim to the world, in strong and emphatic language — " that we still hold these truths to be self-evident ; that all men are created equal ; that they are endowed by tiieir Creator with certain una lienable rights ; that among these are fife, liberty, and the pursuit of happiness ; that to secure these rights, governments are insti tuted among men, deriving their just powers from the consent of the governed." If we are true to the sentiments expressed in this memorable declaration, which we justly prize as the charter of our hberties, the Indian nations are safe, and they may continue to repose confidence in the phghted faith of the republic. SPEECH OF THE HON. ISAAC C. BATES, REPRESENTATIVE FROM MASSACHUSETTS, DELIVEREn IN THE HODSE OP REPRESENTATIVES, ON THE BILL FOR THE REMOVAL OF THE INDIANS, WEDNESDAY, MAT 19, 1830. Mr. Speaker : I shall take it for granted that the States which have passed laws subjecting the Indian tribes to their jurisdiction, mean what, by their legislative acts, they say they mean ; and that the laws, which they have passed, are to be enforced. I reject even the supposition, that. these laws are made not to be execut ed, but in mockery — to be used as an expedient, a contrivance — the means of driving a bargain. Upon such an attempt, come from what quarter it may — States or individuals — the House would frown indignantly. This granted, I affirm, that the bill before us does not meet the exigency ofthe case, nor present fairly and ful ly the question upon which we are to decide. There are, at the south, several tribes of Indians— 4he Chero kees, Creeks, Chickasaws, and Choctaws — with whom the United States stand in this relation, viz. They are under the protection of the United States. The boundary is defined between them and the people of the United States, which no white man is at liberty .to pass without a license under the authority ofthe United States. In short, they hold the guaranty of the United States, hi all the solemn forms of a treaty stipulation, by which the faith of a nation can be pledged, to protect and defend them. The States of Georgia, Mississippi, and Alabama, have passed laws, as these tribes say, directly violating their territorial and national rights. Take the law of Georgia as an exemplification of the laws of the three States. The eighth section makes it penal for a Cherokee to "endeavor" to prevent one of his tribe from emigrating. A father, therefore, may not influence his child, nor a guardian his ward. No, Sir ; he thus exposes himself to four years confinement to hard labor. What will men, who are fathers, or not fathers ; what will men who are free, say to this ? The fifteenth section enacts, " that no Indian, or descendant of an Indian, within the Cherokee nation of Indians, shall be a com petent witness in any court of Georgia, in a suit in which a white man is a party, unless such white man resides within said nation." While Georgia makes the Indians citizens, or subjects, she does not leave them to the common law to be excluded for infamy, interest, or incompetency of any kind; but she proscribes the na- 20 230 MR. BATES'S SPEECH. tion — and that without reference to the character, talent, or ca pacity of individuals, whether Christian or heathen, civilized or savage. They are all turned off the stand by one general sweep ing interdict of law. Now, Sir, whatever may be the form ofthe constitution of Georgia, if it sanctions this act, it is a despotism. Tiberius never dictated an act in its essence more tyrannical, or in its character more unjust. And to take away the only apology that any man could offer — the incapacity of the people to testify — this veiy law admits their capacity, by- admitting them to be witnesses if the party to the suit be resident within the Cherokee nation. But this is not the worst feature of the law, if worse can be. By the seventh section, " all laws, ordinances, orders, and regu lations of any kind whatever, made by the Cherokee Indians, in any way whatever, are declared to be null and void as if the same had never existed ;" thus resolving the nation into its original elements ; making as if it had never been all that combines and forms men into states, nations or tribes ; dissolving all ties but those of nature. Mr. Speaker, I beg the House to realize the measure, the extent and scope of this unrivalled, outrageous act of usurped dominion. Bring it home. Let it be said to you — to the United States of America — that " all your laws, ordinances, orders and regulations, shall be null, as if they had never existed !" Let it be said by a nation that was weak when you were strong ; that had grown up by your side ; that had increased while you had decreased ! Let a nation say it that had lived by your per mission ; that had pledged itself for your protection and defence ! Does it change the case to change the name ? Has the Chero kee no attachment to the simple forms of government he has ma tured and improved ? to the customs and regulations of his fa thers ? Does he not feel ? Is he not a man ? In this condition of things, the Indians applied to the President He told them, as he tells us in his message, " That if they remain within the limits ofthe United States, they must be subject to the laws ; that they will be protected in their possessions which they have improved, but that it seemed to him absurd and visionary to suppose their claims can be allowed to tracts of country merely because they have seen them from the mountain, or passed them in the chase." And thus the subject is presented to Congress, both by the President and the Indians, for consideration. The sympathies of the pubhc having become interested, — for, Sir, na ture is the ally of die weak against the strong — numerous memo rials came in from every part ofthe United States, and the whole subject is referred to your committee upon Indian affairs. That committee report a bill making an appropriation of five hundred thousand dollars, to begin with, for the removal of the Indians to the west ofthe Mississippi. The chiefs say, that is no answer to their inquiry. They desire to know whether they must submit to the laws of Georgia ? and to such laws ? whether she has a right to abrogate their government and dissolve their nation? The President has told them they must, but has referred the sub ject to us. They tell us they cannot decide the question of re- MR. BATES S SPEECH. 231 moval, until they know their rights where they are. And not only the Indian chiefs, but the American people, expect us to an swer. Here is money for your removal, we say. This is the only answer we deign to give them. Well, say they, if you will not tell us directly what our rights are, will you allow us to remind you of your duties ? Will you defend our boundary, and protect us where we are, as you agreed to do ? The President has said he will not They urge upon the consideration of Congress the impossibility of deciding what they will do, until they know what their condition is to be where they are — whether they must sub mit \o such a law or not — whether they will be protected or not— whether they are to retain their lands, or whether Georgia, who has not even " seen them from the mountain, nor passed them in the chase," is to have them. Sir, they produce to you your treaty with them. Is this your signature and seal ? Is this your promise ? Will you keep it ? If you will not, will you give us back the lands we let you have for it ? The President answers, No ; and the Congress of the United States answers, Here is money for your removal. We dare not, in the face of the American people, di rectly affirm the answer of the President ; and, therefore, we evade the question, and hope to hide ourselves in the folds of this bill, when the scrutiny shall be made for us. Sir, who so blind as not to see that, by implication, direct and inevitable, you affirm the decision of the President, by giving him the means to carry that decision into effect ? You decide that the Indians are the citizens of Georgia, subject to her jurisdiction, and that you will not de fend their boundary, nor protect them. This you decide oblique ly, at a time when the crisis in the affairs of the Indian nations, and in the affairs of your own-honor, too, requires that you should speak out. You co-operate with Georgia — you give effect to her laws — you put the Indians aside, and trample your treaties with them in the dust. And it will be in vain you tell the world you did not set fire to the city, when you saw it burning, and would not put it out, though you were its hired patrol and watch. In passing this bill, therefore, the House decide that the Indians are the citizens of Georgia, subject to the jurisdiction of Georgia ; and that we cannot interfere to protect them. Now, Sir, I deny it all. I affirm the contrary. I maintain that the Indians are not the citizens of Georgia, nor subject to the jurisdiction of Georgia; but that they are sovereign ; that we are pledged to protect them in the enjoyment of their sovereignty ; and that Georgia has no right that stands in the way of it. Sir, the great men, who have gone before us in this business, were not so uninstructed hi their duties as to be thus put in the wrong by those who now have the administration of affairs. I shall not go with the gentleman from Tennessee (Mr. Bell) to the other side of the Mississippi, either for the purpose of ascer taining whether the trees can be made to grow for the use of the emigrant Indians, where none ever grew before, or whether the emigrants themselves will form a convenient barrier between our own settlements and the tribes of Indians west of them ; or, if con venient, whether they may not have an objection to becommg a "* 232 MR. BATES'S SPEECH. breast-work to be shot at, or shot through, for our accommoda tion ; or, in a region where there are now frequent victims to famine, whether an addition of such a promiscuous and wild pop ulation will not be hkely to augment the evil. No, Sir ; for if this bill pass, your faith is gone, your honor violated, and there is nothing left worth a wise man's thought I take the liberty to enter my protest against the appeal that has been made to party feeling hi this discussion. If that is to be in voked and enlisted, the destiny of these nations is fixed. It is a spirit that has no heart, no sympathy, no relenting. Truth may pour her radiance upon its vision, and it sees not. Distress may utter her ciy, and it hears not Often has it stained the scaffold with the blood of the innocent. Nor is the sectarian influence that has been called in aid of this measure by the honorable gen tleman from Georgia (Mr. Lumpkin) less to be deprecated. For, although, at this age of the world, it is not seen actually planting the stake and fighting the fires, yet it is akin to the persecutions of a former age. And it would be as much in place, in the high court of law at the other end of the capital, to appeal to the sec tarian and party feelings of the judges as a correct rule of deci sion, as to make the appeal to honorable gentlemen here. Sir, this is not a question upon the life or liberty of an individual but upon the fate of nations. How then can any man, in such a case, and in such an assembly, dare to make the appeal, and hope to be forgiven ! What a reflection upon the integrity and the honor of this House ! Sir, it is not a party question. No man can make it such, until he can quench the last spark of honor in the breast, and stop the current of feeling in the heart, and put out the fight of truth hi the mind, and stifle the voice of conscience in the soul. Sir, it is our right to decide this question, it is our duty to decide it, upon principle — a right in trust for our constituents and coun try, and a duty imposed upon us by relations which we cannot change, and from which we cannot escape, coming down upon us from above, ahd springing up before us from beneath, and flowing in from all around us. Let this question, therefore, be decided upon a full and broad survey of its merits, and its merits only. My positions are, that the Cherokees are not the tenants of Georgia, nor subject to her jurisdiction ; but that they are the sole proprietors of the territory they occupy, whether as hunt ing grounds or otherwise, and are sovereign ; and that the Uni ted States are pledged to defend their boundary, and to protect them in all their rights and privileges as a nation. I suppose it will be admitted, that the Cherokees are a dis tinct class of men from the Georgians, that they were once sovereign, and that the presumption is they are sovereign still. The onus probandi, as the profession say, is therefore upon Georgia. If she claims the right of dictating law to this nation, once sovereign, it is for her to show whence she derived it With this view of the subject, I propose to go back to the origin of the State of Georgia, and briefly to trace her history to the revolution, to see what her rights then were in relation MR. BATES'S SPEECH. 233 to the Indians, as admitted and established by compact. This will preclude the necessity of inquiring as to natural rights. In 1732, Georgia was a part of South Carolina. And in order to erect a barrier against the Indians and Spaniards in Florida, upon the frontier of South Carohna, George II., by patent, created a corporation, styled the "Trustees for establishing the Colony of Georgia in America," to hold for his use all the land between the Atlantic and the South Sea, as it was then termed, within the degrees of latitude and the boundaries therein given. No individual was to hold more than fifty acres. The command ofthe militia was given to the governor of South Carolina. In this patent, nothing is said of the Indians. In 1752, it was surrendered. Oglethorpe, who was the active agent of the corporation, in 1733 arrived in Georgia with a hun dred and fourteen emigrants, men, women and children, and selected the site of Savannah, as the most eligible place for a lodgment, where he erected a fort. The. Upper and Lower Creeks were then twenty-five thousand strong. In order to get a title to some land, he employed a female ofthe half blood, the wife of a trader, to whom he made liberal presents, and gave a salary of a hundred pounds a year. She assembled fifty Indian chiefs, and prepared them to accede to Oglethorpe's proposition of a treaty. They ceded, with some reservations, all the land to the head of tide-water, within the limits of the patent. That treaty admits that the Indians owned the land, and were sove reign. They were treated with as " the headmen of the Creek nation;" and the land, in express terms, is said to be theirs. "Although this land belongs to us," the Creeks say, yet, in consideration the Georgians have come for the good of our wives and children, and " to teach us what is straight," we make the cession. At Coweta, in 1739, another treaty, preceded by large presents, was made, in which the boundaries of the first cession were more particularly defined ; and the trustees de clare, "that the English shall not enlarge or take any other lands except those granted by the Creek nation." In 1762, at Mobile, at a convention of Indian nations, captain Steuart, the Indian agent, told them, " that the boundaries of their hunting grounds should be accurately fixed, and no settlement permitted upon them," assuring them " that all treaties would be faithfully kept." And at. a meeting at Augusta, in 1763, to which captain Steuart's " talk" was prehminary, a further cession of land was made by the Creeks and Cherokees in payment of the debts they had contracted. The governors of the four southern States were present. As showing clearly how this subject was viewed by them in 1767, we find the Indians complaining to the governor of Geor gia of encroachments upon their lands ; and they ask him "how it could be expected of them to govern their young warriors, if he could not restrain the white people ?" In 1773, they cede anoth er tract of land ; and it was then agreed, " that the bounds fixed by that treaty should be the mark of division between his majesty's subjects and the said Indian nations." J 20* 234 MR. BATES'S SPEECH. This Indian boundaiy limited the territory of the colonists on the west. Within this they had a right to dictate law ; be yond this they had no right to do it. If they, or the king, their master, had such right, then the Indians were bound to submit A right implies a duty. Now, who will pretend, that if the king had passed a law abrogating their customs, and making them amenable to the courts of Georgia, the Indians would not have had a right to resist ? If the Cherokees were subject to the jurisdiction of Georgia, then, prior to the treaty of 1763, the Indians beyond the Rocky Mountains were, (for the charter extended to the Pacific Ocean,) some of whom had never heard of the English nation or king. Who will pretend that he had a right to subject them to his laws ? He might have had the power to conquer them, but he had no right to do it. This would have been a right to rob and murder. The Indian boundary is sometimes called the " line of ordina ry jurisdiction," implying an extraordinary jurisdiction beyond it. What was that ? By the right of discovery, settled by com pact among the discovering nations, and since confirmed by treaties with most of the Indians themselves, the king of Great Britain had the sole and exclusive right of purchasing of the Indian nations their title to the land lying in that part of America, which had been assigned to him. We call it the right of pre-emption. The whole of his extraordinary jurisdiction consisted of the right to defend and protect that right of pre emption. The king never attempted or claimed any thing more. I affirm, therefore, that, with this exception, the Indian boundaiy was the boundary of the jurisdiction of both king and colony. I affirm, further, that the Indian nations were the sole and absolute owners of the land which they had not ceded, and which lay west of the Indian boundary, subject only to this restriction upon their right of alienation. Accord ingly the king, in his proclamation of 1763, disclaims anj' other right to it. He says, "it is but just and reasonable, and essen tial to our interest, &c, that the tribes of Indians who live under our protection" (as they now live under the protection of the United States) " should not be disturbed in their posses sions, which, not having been purchased by us or ceded to us, are reserved to them : we do, therefore, declare that no gover nor or commander shall survey or grant them, and that they are reserved to the Indians." The king does not rest the right of the Indian nations to these lands upon concessions, gift, grant, indulgence, or expediency, but upon the broad and solid basis ofthe "justice and reasonableness" of their unalienated title ; a due regard for which principles will be found always to comport with a wise policy. Before I pass from this period, as the whites commonly speak for the Indians, it is but right, when we can, to let them speak for themselves. I refer to the negotiation at Lancaster, in 1744. The governor of Maryland claimed some of their liand by possession. Canasateego replied — "When you mentioned the affair of the land yesterday, you went back to old times, MR. BATES'S SPEECH. 235 and told us you had had the province of Maryland above one hundred years. But what are a hundred years in comparison of the length of time since our claim began — since we came out of the ground ? For we must tell you that, long before one hundred years, our ancestors came out of this ground, and their children have remained here ever since. You came out of the ground beyond the seas ; but here you must allow us to be your elder brothers, and the lands to belong to us long before you knew any thing of them." To Virginia, who claimed some of their lands by conquest, another chief answered — " Though great things are well re membered by us, we do not remember that we were ever con quered by the great king, or that we have been employed by him to conquer others. If it was so, it is beyond our memory. We do remember we were employed by Maryland to conquer the Conostogas ; and the second time we were at war with them, we carried them all off." The House will perceive what the views of these people were of their right to their land, and what their notions were of pos session and conquest. I think it clear, therefore, that before the revolution, the Cherokees were not the citizens of Georgia, nor subject to the jurisdiction of Georgia, nor tenants at the will of Georgia. When the troubles with Great Britain came on, Congress immediately assumed the direction of the Indian relations, as of nations distinct from the States, and independent of them. After a short session for other purposes, in the autumn of 1774, Congress met in May, 1775, and in June » committee was ap pointed to make an appeal to the Indian nations. They were addressed thus, by order of Congress : " Brothers and friends ; this is a family quarrel between us and Old England. Indians are not concerned in it." In the same month, the Indian tribes were arranged into three departments ; and commissioners were appointed to treat with them "in behalf of the United States, to preserve peace with them, and prevent their taking part in the commotions of the times." In January, 1776, rules for Indian intercourse were establish ed, interdicting all " trade with them without a license." In 1777, another "talk" was addressed to them, reaffirming that they ought to take no part in the war between the United States and Great Britain, and stating also, that, although the " Cherokees had been prevailed upon to strike us, they had seen their error, had repented, and we had forgiven them, and re newed our ancient covenant chain with them." In 1778, a treaty with the Delaware nation was concluded at Fort Pitt. ' The parties to it were " The United States of North America and the Delaware nation." It stipulates : That there shall be peace ; and that the troops of the United States may pass " through the countiy ofthe Delaware nation," upon pay ing the full value of the supplies they may have. It further 236 MR. BATES'S SPEECH. provides, that, " Whereas the enemies of the United States have endeavored, by every artifice, to possess the Indians with an opinion that it is our design to extirpate them, and take pos session of their country — to obviate such false suggestions, the United States guaranty to said nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as bounded by former treaties ;" and they further pro vide for a confederacy of tribes, of which the Delaware nation was to be the head, and to have a representative in Congress. Here is recognition enough of the rights of Indians. And, to put an end to the false suggestion, which none but an enemy could make, assurance is given, by treaty, binding upon the whole country, that their territorial rights shall be defended, in the fullest and most ample manner, as antecedently defined. Now, Sir, let it be recollected, that, during this period, all the States, by their agents, acting under their authority and 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 re spect 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, any, or all of them. When the articles of confederation were adopted, in 1778, 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 connexion with this clause is a proviso, " 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 ofthe States. Accord ing 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 the grant, there might be something in 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 im portation of goods." These articles were permanent ; and it was not to be foreseen what these tribes might 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 MR. BATES'S SPEECH. 237 inhabitants of the States. Or, again, it might have been to re strain Congress from controlling the laws of the States in relation to the people of these Indian nations, when within the acknowl edged hunts and jurisdiction of the States. Or, finally, it mi. The act of 1796 defines the boundaiy 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 imbodied 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 murder of on Indian. These provisions were, among other tilings, 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 re-affirms 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 pun ishment. It makes void all grants by Indian nations, or individ uals, unless sanctioned by Congress; and it commissions the MR. BATES'S SPEECH. 239 President to see it faithfully executed. It will be perceived at a glance, that if the Indians were the citizens of Georgia, or sub ject to her jurisdiction, the whole range of this act is unconstitu tional. 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 teiri tory in the occupancy of the Cherokee Indians," is the most de cisive 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 Cher okees! 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 boundaiy, beyond wliich they had no right to go, and beyond which no citizen of Georgia could go to execute them. If Congress has power, under the Constitu tion, 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 State? have made with the Cherokees. The power to make treaties is hi 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, any thing 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 ? Ham ilton says, " Treaties are contracts with nations, which have the force of law, but derive it from the obhgations 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. They 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, is of no importance, because indis putably they are what was meant and intended by the term as used in tlie'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 trea ties, were not in fact treaties ? 240 MR. BATES'S SPEECH. 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 shghtest 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 to Congress in 1786 ; 2d, Because the boundary to which it related had been a matter of perpetual dispute between her and the United States ; and, 3d, Because, when she adopted the Constitution, the procla mation of Congress was then before the people, requiring submis sion 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 promi nent, 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 boundaiy 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 shalfbe the following," going on to state it. Now, Sir, what form of words can add any thing to the strength of the covenant or guaranty involved in the phrase "is and shah be," and that without hmitation 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 obhgation. 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 it to the contig uous counties of that State ? 6. Congress " shall have the sole and exclusive right of regu lating the trade with the Indians, and managing all their affairs in such 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 affaire 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 MR. BATES'S SPEECH. 241 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 and 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 forth in the same article, viz : " For the benefit and com fort of the Indians, and for the prevention of injuries and oppres sions 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 coun try open to the inroads, injuries and oppressions of her own citizens? And what becomes ofthe guaranty of boundary, and ofthe protection the United States promised them ? 7. Retaliation is not to be practised on either side, " except for a manifest violation ofthis treaty ; and then it shall be pre ceded 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 it is still in force. To remove all doubt upon this subject, I have only to remark, that, by the treaty of Philadelphia in 1794, at Tellico in 1798, and again in 1805, and at the Cherokee agency in 1817, by general Jackson, this treaty of Hopewell is recognised 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 intrust ed to me by the Constitution, to carry into effect and faithful execution the treaty of Hopewell, unless it shall be thought proper to attempt to arrange a new boundary with the Chero kees, embracing the settlements, and compensating the Chero kees 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 change the boundary fixed by the treaty of Hope well. He goes on — " Is it the judgment ofthe Senate, that over tures shall be made to the Cherokees to arrange a new boun dary, so as to embrace the settlements made by the white peo ple 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 affirmed by the Constitution, but, during the first Congress underthe Constitu tion, it was recognised 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. 21 242 MR. BATES'S SPEECH. It had in it no limitation as to time ; and if it be not now in force, let the advocates ofthis 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, of course, "and, in order to preclude forever all disputes relative to said boundary, the same shall be ascertained, says the treaty, and marked plain ly." And by the seventh article, " The United States solemnly guaranty to the Cherokee nation all their lands not hereby ce ded." Here the guaranty iii the treaty of Hopewell is reitera ted 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 alludedj and in prospect of this identical treaty of Hol ston, put this question, " Shall the United States stipulate sol emnly to guaranty the new boundary which may be arrang ed ?" 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 ofthis boundary, and to prevent the partition of their nation, and the annexation of its parts to Georgia ? The Presi dent has told us, " they must submit." This bill tells us so, and tells the world so. Submit, or remove, is the language. This treaty of Holston, the ninth article, further stipulated, " that no citizen ofthe 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 thereby 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, and 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 citi zens, the tenants at will, of Georgia ? or subject to the juris diction of Georgia ? Who does not see that they were sove reign ? the sole, the admitted proprietors of the "countiy 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 Geor gia, but they interpose the most insurmountable obstacles to an assumption of it by Georgia. And I feel justified in affirming, MR. BATES'S SPEECH. 243 that, unless the laws of the United States, and treaties under which we hold millions of acres of land— laws and treaties nev er questioned until it became necessary to deny their authority to sustain this claim — are a dead letter, the sovereignty of the Cherokees is recognised, and the protection of them guarantied. At this stage in the progress of my remarks, allow me to ad vert to the origin of the claim on the part of Georgia, with a view to a consideration ofthe settlement of it in 1802. I have already remarked, that, at the commencement of the revolution, the Indian boundaiy 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 ofthe 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 mat ter was viewed by one side, at least, at that time. It is by way of recital. "Whereas the territory (of the United States) com prehends 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 hav ing been acquired under the confederation, and by the joint and united efforts of all : And whereas several ofthe States acceded to the confederation under the idea that a countiy unsettled at the commencement of this war, claimed by the British crown, if wrested from the common enemy, by the blood and treasure ofthe thirteen States, should be considered as a common prop erty,", 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 ben efit ofthe United States. * Georgia held on, and claimed as her own, the immense and valuable traGt 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 Massachu setts eight hundred and twenty thousand, Georgia paid sixty thousand only. * New York ceded in 1781, Virginia, 178*. Massachusetts, 1785, Connecticut, 1786, South Carolina ceded in 1787, North Carolina, 1789. Georgia, 1802, 244 MR. BATES'S SPEECH. Immediately after the preliminaries of peace, Georgia under took to fortify her claim, and passed an act declaring that the boundary of Georgia " does, and did, and of a right ought to ex tend 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 could be sustained under that ; and it is clear the confedera tion settled nothing in relation to the title to these lands. Geor gia, in her constitution of 1798, 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 the same article authority is given to sell to the United States the land lying west of the Chatahooche, and to procure an extin guishment of Indian claims to the land east of that river. The boundary ofthe ordinary jurisdiction of Georgia — "the tempo rary line" — is here recognised in her constitution, and the Cher okee country as lying without that boundaiy, as also the right of the Cherokees thereto. The purpose of Georgia was to estab lish 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, com missioners 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 Chatahooche, 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 boundaiy 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 riglit 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 exercis ed 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 nor removable, b,ut by the consent of the Cherokees. Nor was it intended to be "ceded;" for it has been recognised MR. BATEs's SPEECH. 245 in ten successive treaties, since the cession, as still existing in the United States. It was a trust, for assuming which the Uni ted 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 Uni ted States could have transferred it. What was it, then? Sim ply 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 had to "jurisdiction." And these were all the United States could, or did assign, or at tempt to assign, to Georgia. But this whole countiy 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 andabsolutely, with the limitations I have named, and those not at all effecting 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 ofthe Cherokees. Here was no stipulation on the part of the United States, express or implied, to adopt any ex pedient 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 equiv alent — not at all events and hazards ; — not an obligation abso- lute, but conditional. And if the Cherokees refuse to sell and to leave their country, the United States are under no obligations to Georgia, other than to keep up a standing offer of reasonable terms to the Cherokees. This certainly is the case, if we sub ject 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 admission 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, an 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 stipula tion 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 you 21* 246 MR. BATES'S SPEECH. please, vexed question — is settled ; is not open to re-examina tion 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 those lands to be in Georgia, without restriction or limitation, by virtue ofthe com pact of 1802, and that she may extinguish the Indian title, let tis 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 In dians ; 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 jus tice and humanity should from time to time be made, for prevent ing wrongs being done to them, and for preserving peace and friendship with them." Another part ofthe compact was, that, wheiiever any new States, that might be formed out ofthe ter ritory so ceded, should be admitted into the Union, " it should be on an equal footing with the original States, in all respects whatever." This article in the ordinance of 1787, in relation to the In dians, is declaratory ofthe rule of justice and policy to which all the States are subject, and by which they are to be govern ed; 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. Wlien, 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 jus tice as bind all men, whether declared or not. They, at least, are not unconstitutional principles. Now, Sir, can any thing 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 Con gress ? This is what Georgia concedes to, and affirms of the In dians 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 ofthe natives of Alabama and Missis sippi, is it not true also ofthe natives belonging to the same na tion on the east as well as on,,thett>es also, of property, &c. as stated ;" from which it appeared that the population was 15,560, including 1277 negroes ; and that there were "18 schools in the nation, and 314 scholars of both sexes, 36 grist-mills, 13 saw-mills, 762 looms, 2486 spinning- wheels, 172 wagons, 2923 ploughs, 7683 horses, 22,531 black cattle, 46,732 swine, 2566 sheep, 430 goats, 62 blacksmiths' shops, 9 stores, 2 tan-yards, and 1 powder-mill, besides many other items not enumer ated ; and there are several public roads, and ferries, and turnpikes, in the nation." These, Sir, are your barbarians; these are your savages; these your hunters, whom you are going to expel from their homes, and send out to the pathless prairies of the west, there to pursue the buffalo as he ranges periodically from south to north, and from north to south ; and you will do it for their good ! . But I shall be told, perhaps, that the Cheroke'es are more advanced than their red brethren in civilization. They may be so ; but to a less extent, I imagine, than is generally thought. What is the condition of the Choctaws ? I quote a letter from one of the missionaries to that tribe, communicated to the Senate by the department of war, during the present session. After stating that a very great and general reformation of the vice of intemperance had, within a few years, taken place, Mr. Kingsbury proceeds : — " The result of a census taken in 1828 in the north-east district, was as follows, viz: population, 5627 ; neat cattle, 11,661; horses, 3974; oxen, 112; hogs, 22,047; sheep, 136; spinning-wheels, 530 ; looms, 124; ploughs, 360; wagons, 32; blacksmiths' shops, 7; coopers' shops, 2 ; carpenters' shops, 2 ; white men with Choctaw families, 22 ; schools, 5 ; scholars in the course of instruction, about 150. In one mr. Everett's speech. 277 clan, with a population of 313, who, eight years ago, were almost entire' ly destitute of property, grossly intemperate,' and roaming from place to place, there are now 188 horses, 511 cattle, 853 hogs, 7 looms, 68 spinning-wheels, 35 ploughs, 6 oxen, 1 school, and 20 or 24 scholars.* "Another evidence of the progress of improvement among the Choctaws is the organization of a civil government. In 1826, a gene ral council was convened, at which a constitution was adopted, and legislative powers were delegated to a national committee and council, whose acts, when approved by the chiefs, became the supreme laws ofthe land. I have now before me a manuscript code, containing 22 laws, which have been enacted by the constituted authorities, and, so far as I know, carried into complete execution. Among the subjects embraced by these laws are theft, murder, infanticide, marriage, po lygamy, the making of wills and settling of estates, trespass, false tes timony, what shall be considered lawful enclosures around fields, &c. "A great desire for the education of their children furnishes anoth er proof of the advancement of the Choctaws. Petitions are frequent ly made requesting the establishment of new schools. Numbers more have applied for admission to the boarding-schools than could be re ceived. Nothing is now wanting but' suitable persons and adequate means, to extend the advantages of education to all parts of the Choc taw nation." " The preaching ofthe Gospel has, within the two past years, been attended with very happy effects. To its influence must be ascribed much of that impulse, which has recently been given to the progress of civilization, in the more favored parts of the nation. The light which the Gospel has diffused, and the moral principles it has imparted to the adult Choctaws, have laid a foundation for stability and permanency in their improvements. In this district, eighty-two natives', principal ly heads of families, are members of the church. All these, with one exception, have maintained a consistent Christian character, and would do honor to any Christian community. " Nor is the condition of the Chickasaws less advanced and im proving. From the official return of colonel M'Kenney, it ap pears that their numbers are about four thousand. They are esti mated by him to possess eight hundred houses, of an average val ue of one hundred and fifty dollars, with some that must have cost one or two thousand. He supposes them to have 10 mills, 50 workshops, enclosures of fields to the value of fifty thousand dollars, and an average of stock to each of 2 horses, 2 cowsv 5, hogs, and a dozen of poultry. I know, Sir, that there is, in the same document on the civiliza tion of the Indians, communicated to the Senate, (meagre at the best, compared With the ample materials for such a document, in possession of the department,) a letter which tells you that the Choctaws, except where the schools are, and where the half breeds five, are, in every sense of the word, genuine Indians. No gen eral improvement hi any tiling appears to pervade the country. I will rely more on this expression of opinion, when I am better informed ofthe disinterestedness of its source. Such are some ofthe people we are going to remove from their homes ; people living, as we do, by husbandly, and the mechanic * This is but the return of one district, doubtless less than a third of the nation. 24 278 mr. everett's speech. orts, and the industrious trades ; and so much the more interesting, as they present the experiment of a people rising from barbarity into civihzation. We are going to remove them from these their homes to a distant wilderness. .Who ever heai'd of such a thing before ? Whoever read of such a project ? Ten or fifteen thou sand families, to be rooted up, and carried hundreds, ay, a thou sand of miles into the wilderness! There is not such a thing in the annals of mankind. It was the practice— rthe barbarous and truly savage practice — ofthe polished nations of antiquity, to bring home a part of the population of conquered countries as slaves. It was a cruel exercise ofthe rights ofthe conqueror, as then un derstood, and, in turn, practised by all nations. But in time of peace, toward unoffending communities, subject to our sovereign ty indeed, but possessing rights guarantied to them by more than one hundred treaties, to remove them against their will, by thou sands, to a distant and a different country, where they must lead a new life, and form other habits, and encounter the perils and hardships of the wilderness ; Sir, I never heard of such a thing ; it is an experiment on human life and human happiness of perilous novelty ! Gentlemen who favor the project cannot have viewed it as it is. They think of a march of Indian warriors, penetrating, with their accustomed vigor, the forest or the cane-brake — they think of the youthful Indian hunter, going forth exultingly to the chase. Sir, it is no such thing. This is all past ; it is matter of distant tradition, and poetical fancy. They have nothing, now left of the Indian but his social and political inferiority. They are to go in families, the old and the young, wives and children, the feeble, the sick. And how are they to go ? Not in luxurious carriages ; they are poor. Not in stage coaches ; they go to a re gion where there are none. Not even in wagons, nor on horse back, for they are to go in the least expensive manner possible. They are to go on foot ; nay, they are to be driven by contract The price has been reduced, and is still further to be redu ced. It is to be reduced by sending them by contract It is to be screwed down to the least farthing, to eight dollars per head. A community of civilized people, of all ages, sexes and conditions of bodily health, is to be dragged hundreds of miles, over moun tains, rivers, and deserts, where there are no roads, no bridges, no habitations ; and this is to be done for eight dollars a head ; and done by contract. The question is to, be, What is the least for which you will take so many hundred families, averaging so many infirm old men, so many little children, so many lame, fee ble and sick ? What will you contract for ? The imagination sickens at the thought of what will happen to a company of these emigrants, which may prove less strong, less able to pursue the journey, than was anticipated. Will the contractor stop for the old men to rest, for the sick to get well, for the fainting women and children to revive ? He will not ; he cannot afford to. And this process is to be extended to every family, in a population of seventy-five thousand souls. This is what we call the removal of the Indians ! It is very easy to talk of this subject, reposing on these luxuri- mr. Everett's speech. 279' ous chairs, and protected by these massy walls, and this gorgeous canopy, from the power ofthe elements. Removal is a soft word, and words are delusive. But let gentlemen take the matter home to themselves and their neighbors. There are 75,000 Indians to be removed. This is not less than the population of two congres sional districts. We are going, then, to take a population of Indians, of families, who five as we do in houses, work as we do in the field or the workshop, at the plough and the loom, who are governed as we are by laws, who send their children to school, and who attend them selves on. the ministry of the Christian faith, to march them from their homes, and put them down in a remote, unexplored desert. We are going to do it — this Congress is going to do it — this is a bill to do it. Now, let any gentleman think how he would stand, were he to go home and tell his constituents, that they were to be re moved, whole counties of them — they must fly before the wrath of insupportable laws — they must go to the distant desert, beyond Arkansas — go for eight dollars a head, by contract — that this was the policy of the government — that the bill had passed — the money was voted — you had voted for it-— and go they must. Is the case any the less strong because it applies to these poor, unrepresented tribes — "who have no friends to spare?" If they have rights, are not those rights sacred — as sacred as ours — as sa cred as the rights of any congressional district ? Are there two kinds of rights, rights of the strong, which you respect because you must, and rights ofthe weak, on which you trample, because you dare ? I ask gentlemen again to think what this measure is, not what it is called : to reflect on the reception it would meet with, if proposed to those who are able to make their wishes re spected, and especially if proposed to them for their good. Why, Sir, if you were to go to the least favored district in the Union — ¦ the poorest soil — the severest climate — the most unhealthy region, and ask them thus to remove, were it but to the next State, they would not listen to you ; they would not stir an inch. But to take up hundreds and thousands of families, to carry them off un measured distances, and scatter them over a wilderness unknown to civilized man — they would think you insane to name it ! What sort of a region these unhappy tribes are to be removed to I will presently inquire. Let us see what sort of a region they are to leave. And now, Sir, I am going to quote an account, wliich I candid ly admit to be in all likelihood over stated. It proceeds from a patriotic native pen ; and who can rest within the limits of exact reality, h* describing the merits of a beloved native land ? I be heve it a little colored, but the elements of truth are there. It is plain, from the circumstance and detail, that it is substantially cor rect At any rate, since I have been a member of Congress, it has been twice, and I believe three times, communicated from the • war department, as official information. It is from a letter written by David Brown, a native Cherokee, of mixed blood, da ted Willstown, Cherokee Nation, September 2, 1825 :— " The Cherokee nation, you know, is in about 35 degrees north latitude ; bounded on the north and west by the State of Tennessee ; 280 mr. everett's speech. on the south by Alabama, and on the east by Georgia and North Caro lina. This country is well watered ; abundant springs of pure water are found in every part. A range of majestic and lofty mountains stretch themselves across the nation. The northern part of the nation is hilly and mountainous. In the southern and western parts, there are exten sive and fertile plains, covered partly with tall trees, through which beautiful streams of water glide. These plains furnish immense pas turage, and numberless herds of cattle are dispersed over them. Hor ses are plenty, and are used for servile purposes. Numerous flocks of sheep, goats, and swine, cover the valleys and hills. On Tennessee, Ustanala, and Canasagi rivers, Cherokee commerce floats. The climate is delicious and healthy ; the winters are mild ; the spring clothes the ground with its richest scenery. Cherokee flowers, of exquisite beauty and variegated hues, meet and fascinate the eye in every direction. In . the plains and valleys, the soil is generally rich, producing Indian corn, cotton, tobacco, wheat, oats, indigo, sweet and Irish potatoes. The na tives carry on considerable trade with the adjoining States ; and some of them export cotton in boats down the Tennessee, to the Mississippi, and down that river to New Orleans. Apple and peach orchards are quite common, and gardens are cultivated, and much attention paid to them. Butter and cheese are seen on Cherokee tables. There aTe many public roads in the nation, and houses of entertainment kept by natives. Numerous and flourishing villages are seen in every section of the country. Cotton and woollen cloths are manufactured heTe. Blankets of various dimensions, manufactured by Cherokee hands, are very common. Almost every family in the nation grows cotton for its own consumption. Industry and commercial enterprise are extending themselves in every part. Nearly all the merchants in the nation are native Cherokees. Agricultural pursuits (the most solid foundation of our national prosperity) engage the chief attention of the people. Dif ferent branches in mechanics are pursued. The population is rapidly increasing." Such is the land, which at least one large community of these Indians are to leave. Is it not too much for human nature to bear, that unoffending tribes, for no alleged crime, in profound peace, should be rooted up from their hereditary settlement, in such a land, and hurried off to such an one as I shall presently show to the House ? Sir, they are attached to it ; it is theirown ; and though, by your subtilties of state logic, you make it out that it is not their own, they think it is ; they love it as their own. It is the seat of their council fires, not always illegal, as your State laws now call them. The time has been, and that not very distant, when, had the king of France, or of Spain, or of England, talked of its be ing illegal for the Choctaws or Cherokees to meet at their coun cil fire, they would have answered, " Come and prevent us." It is the soil in which are gathered the bones of their fathers. This idea, and the importance attached to it by the Indians, have been held up to derision by one of the officers of the government. He has told the Indians that "the bones of their fathers cannot benefit them, stay where they are as long as they may."* I * Proceedings of the Indian Board, in the City of New York, with Colonel M'Keimcy's Address, page 42. mr. Everett's speech. 281 touch with regret on that, upon wliich the gentleman from New Vork has laid his heavy hand. I have no unkind feeling to wards the gentleman, who has unadvisedly made this suggestion. But the truth is, this is the very point on which the Indian race —sensitive on all points— is most peculiarly alive. It is prover bial. Governors Cass and Clark, in their official report the last winter, tell you, that " We will not sell the spot which con tains the bones of our fathers," is almost always the first an swer to a proposition for a sale. The mysterious mounds which are seen in different parts ofthe country, the places of sepulture for tribes that have disappeared, are objects of reverence to the remnants of such tribes as long as any such remain. Mr. Jefferson, in his Notes on Virginia, tells you of such a case. Unknown Indians came through the country, by a path known to themselves, through the woods, to visit a mound in his neigh borhood. Who they were no one knew, nor whence they came, nor what was the tribe to whose ashes they had made their pilgrimage. It is well known that there are tribes who cele brate the great feast of the dead— an awful but affecting com memoration. They gather up the bones of all who have died since the last return ofthe festival, cleanse them from their im purities, collect them in a new deposit, and cover them again with the sod. Shall we, in the complacency of our superior light, look without indulgence on the pious weakness of these chil dren of nature ? Shall we tell them that the bones of their fa thers, which they visit after the lapse of ages, which they cher ish, though clothed in corruption, can do them no good ? It is as false in philosophy as in taste. The man who reverences the ashes of his fathers — who hopes that posterity will reverence his — is bound by one more tie to the discharge of social duty. Now, Sir, whither are these Indians, when they are removed, to go ? I confess I am less informed than I could wish. I thank the gentleman from Pennsylvania (Mr. Hemphill) for his amend ment. It does credit to his sagacity. It is just what is wanted. I say, we all want information. We are going, in a very high handed way, to throw these Indians into the western wilderness. I call upon every gentleman, who intends to vote for the bill, to ask himself, if he has any satisfactory information as to the char acter of that region. I say it is a terra incognita. It has been crossed, but not explored. I have made some notes of this country, and it is the conclusion to wliich I have come, from consulting the best authorities within my reach, and particularly colonel Long and Mr. Nuttall, that it is an uninhabitable desert. The gentleman from Ohio, (Mr. Vinton,) the other day, moved a. resolution asking for information on this subject. The House felt that it wanted the information : his resolution was adopted. And what did we get in reply ? Twenty-two lines, from a letter written by governor Clark, five years ago? and he had never seen the country, to which the title of the Osages and KanzaS had, when he wrote the letter, just been extinguished. This is the official information which is to guide us in deciding the fate of thousands and tens of thousands of fellow-beings ! Then we 24* 282 mr. everett's speech, have the testimony of Mr. McCoy. He saw the country. But how much did he see of it ? — how far did he go westward ? For ty-eight miles only. He admits that the land is good only for two hundred miles west from Arkansas ; and three quarters of this he took on trust, for he went only forty-eight miles into it, in a westerly direction. Is this an exploration on which we can depend — a hasty excursion, for a few miles, into the district, to which we are to transplant the Indians ? Sir, it would do to write a paragraph upon in a newspaper ; it would serve as a voucher for an article in the gazetteer. But, good heavens! will this warrant us in taking up dependent tribes of fellow be ings from their homes, and marching them, at a venture, into this remote desert, upon the borders of which an agent had just set bis foot ? From the time that Mr. McCoy left St. Louis till he got back, there were just sixty-two days. His descrip tion is as follows ; and I quote the passage because it contains the strength of his recommendation : — " I may not be so fortunate as to meet with many who concur with me in opinion relative to the country under consideration, (I mean the whole described in our remarks,) yet I hesitate not to pronounce it, in my estimation, very good, and well adapted to the purposes of Indian settlements. I think I risk nothing in supposing that no State or terri tory in the Union embraces a tract, of equal extent and fertility, so little broken by lands not tillable, to that lying south of Kanza, and on the upper branches of Osage and Neosho, the extent of which I have not been able to ascertain. This country also has its defects, the greatest of which is the scarcity of timber ; but, by a judicious division among the inhabitants of woodland and prairie, there will be found a sufficien cy of the former, in connexion with coal, to answer the purpose in question with tolerable convenience." Again : " The greatest defect in this country (and I am sorry it is of so serious a character) is the scarcity of timber. If fields be made in the timbered land, which most persons, who have been accustomed to timbered countries, are inclined to do, (the Indians more especially, , because often unprepared with teams for breaking prairie,) timber will «pon become too scarce to sustain the population, which the plan under consideration contemplates. I trust that I need offer no apology for sup posing that measures ought to be adopted immediately, for marking off to each settler, or class of settlers, the amount of timbered land really neces sary for their use, severally, and no more. The timber, generally, is so happily distributed in streaks and groves, that each farm may be allow ed the amount of timber requisite, and then extend back into the prairie for quantity. The prairies being almost universally rich, and well sit uated for cultivation, afford uncommon facilities for the operation of such a method. By pursuing this plan, wood, after a few years, will increase in quantity annually, in proportion as the grazing of stock and the interests of the inhabitants shall check the burning of those prai ries. These regulations, essential to the future prosperity of the terri tory, cannot be made without the existence of the superintendency of which I speak. Let it be said that the country within such and such boundaries shall be given to the Indians, for the purpose under consid eration. Next establish such a course of things as will render it possi ble to make a fair distribution of it among its inhabitants, in view of their numbers and circumstances, and which will secure to them the possibility of future prosperity." mr. everstt's speech. 283 I believe, Sir, that Mr. McCoy is a very worthy and benevo lent person. Having been connected with a mission to some north-western band of Indians, which has been nearly or quite broken up by the encroachments of whites, he appears to have considered removal as the greatest good for all Indians, under all circumstances. While the Indians, whom he conducted, were evidently dissatisfied with the country, he makes the best of it. He was there a very short time, and penetrated a short distance, but tells us " the prairies are almost universally rich," and that even the single farms can be laid off with a patch of woodland. He could not possibly know this to be true. He saw as much ofthis country as a traveller would see of Pennsylva nia, Maryland and Virginia, who should go by the straightest road from Philadelphia to Harper's Ferry, and thence back to Washington. This region is said to be six hundred miles long and two hundred and fifty broad. Mr. McCoy's whole line of march within it, going and returning, was about four hundred miles ! As for the project,6f settling each Indian family under a gov ernment superintendency ; persuading them to spare the Wood ; counting out such a number of trees as is absolutely necessary ; and thus making provision " for the possibility of future pros perity," and for " tolerable convenience" in respect to fuel, it defies gravity. The wildest delusions by which waste lands in distant countries are puffed off by jobbers do not go beyond this. One coarse fact, like that which I have already cited from Mr. Nuttall, showing the wretched shifts to which the Osages were put for fuelj* is worth a volume of these well-meaning specu lations on the providence, thrift and foresight of the Indians, in husbanding their timber. This incontestable want of timber in the region in question would make it uninhabitable to the thrif tiest people on earth. Sir, mere benevolence, piety, and zeal, do not qualify a person to promulgate opinions which are to affect the well-being and lives of thousands of fellow men. You tell an Indian, shivering in the winter, over the wretched sub stitute for fuel which Mr. Nuttall describes, that there is a "pos sibility," some years hence, of his having wood enough to ena ble him to get along with "tolerable convenience," if he is very provident in the mean time! What are the Indians to do after they get here ? The original plan of going over the Mississippi was to find ample range for the chase. That object was sanctioned by Mr. Jefferson, in 1806, when proposed by the emigrating portion of the Chero kees. It now seems abandoned ; and we are told of raising their character, of putting them on an equality with ourselves, and fixing them in snug farms of so much woodland and so much prairie. Can they pursue their accustomed occupations in this new region ? Can any man on his responsibility say, they will find wood and water, and soil, and access to market, and con venience of navigation, like what they have left ? No man can * The use of bisons' ordure. 284 mr. Everett's speech. say it. What j3oes experience teach? The Cherokees in Ar kansas, after encountering great hardships, were doing well, and, after ten years' residence, have been pushed further westward. A lavish expenditure by the government, and the untiring be nevolence of the pious and hberal, has re-established them in seeming comfort ; but the result is yet to be seen. We are al ready threatened with' a general Indian war on the frontier. But the case ofthe Cherokees of Arkansas is the only one, which is not a deplorable failure. What says general Clark, writing to the department, 10th December, 1827 ? " I must request you to draw the attention of the secretary of war to the moving or emigrating Indians, who are continually coming on to this side of the Mississippi. Those that have come on, and not perma nently settled, (many of them,) are scattered for the purpose of procuring subsistence; and frequent complaints are made against them by the white people, and considerable expense in curred in reconciling the difficulties." This "scattering to procure subsistence," (leading to com plaints, by the whites, and expense in reconciling difficulties,) I take to be a periphrasis for roving about, begging and stealing. Again : " The tribes on this side of the Mississippi are wretch ed, and moving from place to place. I have just beard that the several scattering bands, who resided near Fort Towson, have removed near Alexandria on the Red river." " It will be necessary, that authority be given as soon as possible, to exchange, lands with the Delawares, Kickapoos, Shawnees, Pianki- shaws, &c, and settle them on the Kanzas river. And it is also neces sary, that some assistance should be given to remove them there, and, when there, to assist them in preparing the earth for cultivation and provisions, till they can raise a support. Without this aid, the Indians will be more wretched than they were before they moved. " The Shawnees and Delawares of Cape Girardeau, whowere, twenty years ago, doing well, with good houses, little farms, with stock in abundance, are now in distress, roving in small parties in every part ofthe country, in pursuit of subsistence. Those who have come from Ohio will, if not supported, in a short time be in the same situation. " The distresses of the Indians of this superintendency are so great and extensive, and complaints so frequent, that it is and has been im possible for me to report them. I therefore have taken on myself a great deal in acting as I thought best; I have not troubled the govern ment with numerous occurrences which they could not remedy." Sir, general Clark is your most experienced superintendent of Indian affairs ; and his superintendency lies in this vaunted Indian Canaan, beyond the Mississippi. Let us learn wisdom from the fate of the Shawnees and Delawares, who, in twenty years, have sunk from the possession of comfortable farms and competence, to abject, roving poverty. One statement more from an official letter of general Clark, of March 1, 1826, and I leave this topic : — " The condition of many tribes west of the Mississippi is the most pitiable that can be imagined. Duiing several seasons in every year, they are distressed by famine, in which many die for want of food, and during which the living child is often buried with the dead mother, mr. Everett's speech. 285 because no One can spare it as much food as would sustain it through its helpless infancy. This description applies to the Sioux and Osages, and many others ; but I mention those because they are powerful tribes, and live near our borders, and my official station enables me to know the exact truth. It is vain to talk to people in this condition • about learning and religion.' " This is the country to which the Indians are to be moved. This is the fertile region, in which they are to be placed. This their prospect of improvement. The worthy chairman ofthe committee told us ofthe causes of their degeneracy, seated in the nature or in the habit, the second nature of the Indians. Admit the truth' of the repre sentation. I am sorry there is any foundation for it. My hopes have never been over sanguine of elevating the race to a high degree of civilization ; although within a few years better hopes have been authorized than ever before. But these causes of degeneracy exist The Indians, it is said, suffer from the proximity of the whites, and the jealousy and hostility between them, and the conscious inferiority of the Indian. But this is not remedied west of Arkansas ; they will have a white popula tion crowding on them there. There is one already. We are told they are improvident. Be it so ; will they not be improvi dent there ? Mr. McCoy tells us, this happy land has but little timber, and yet thinks that, if left to themselves, they would go in and cut it down ; and that there must be a sort of govern ment forester, to parcel it out for them, and keep them from wast- ingit. We are told they -have an innate propensity to intemper ance. Will they cease to have it in the wilds of Arkansas ? If they thirsted for spirits by the pleasant banks of the Ustanala and Coosawattee, will they abstain in the salt prairies and parched deserts of the west? What safeguard will they have there, which they have not here ? Surely, Sir, as they are removed from a surrounding civilization, as they cease to breathe the very temperate atmosphere ofthe Atlantic States, there is reason to fear, that the causes of degeneracy will remain in all their inten sity, While the checks will be fewer, and the remedies weaker. I have already hinted that this great project fails in the point put forward as its recommendation — the permanency ofthe new abode. There is no well-grounded hope of permanency in it, and our experience shows that it is delusive. The Cherokees of Arkansas were permitted to remain just ten years ! If the lands to which you remove them are what you describe them to be, you may as well push back the tide in the bay of Fundy as keep out the white population. Its progress onward is sure, and as surely will it push the Indians before it This new wilderness, which you parcel out to them, is not a permanent home. It is a mere halting place — a half-way house on the road to the desert. We talk of pledges, guaranties, and patents. Now, Sir, I have not the least doubt of the good faith ofthe President, of his cabinet, of every gentleman in this House friendly to the bill, and of every honest man in the-community who supports it. They all honestly mean that the Indians should be safe in their 286 mr._ Everett's speech. new residence; and if they are not safe, it will not be the fault of the friends of the bill. Having said this, I must be permit ted to add, that I would not give one farthing for the' best patent that could be issued to this new country, with the seal of every member ofthe government. I would not pick up the unmean ing scroll from the earth. Wjiat ! take a patent to secure my title west of the Mississippi, when fifty treaties on the east side, sign ed by all your Presidents, sanctioned by all your Congresses, have proved themselves not worth what it cost to engross them ! I would regard the offer of it as an insult. Treaty and patent ; what is the difference, save that the former is the more solemn and authentic pledge ofthe public faith ? Are they not both of the like parchment, signed and sealed ? What is there in a pat ent to give it a binding power? Is there any principle of obli gation in it ? any life or voice to upbraid its violators ? There is nothing in it. It is a word, a name. It signifies nothing — it can do nothing. It is meant well — and that is well — and that is all. But, Sir, these Indians could not live in this country, not even if your advancing population would let them alone, and the country itself were a pretty good one. It requires some of the highest qualities of civilized man to emigrate to advantage. I do not speak of great intellectual elevation ; not of book learn ing, nor moral excellence ; though this last is of great impor tance in determining the prosperity of a new settlement. But it is only the chosen portion of a community, its elite, that can perform this great work of building up a new country. The nervous, ^ardent young man, in the bloom of opening life, and the pride of health, can do it. It is this part of the population that has done it. This is the great drain of New England and the other Atlantic States. But to take up a whole population ; the old, the feeble, the infant, the inefficient and helpless, that can hardly get through life any where, to take them up by a general operation, and scatter them over an unprepared wil derness, is madness. It is utterly impossible for them — I do not say to prosper — but even to subsist. Such a thing was never heard of. How narrowly did the pilgrims of New England es cape destruction, although their ranks were made up of men of the sternest moral qualities, well provided with pecuniary resour ces, and recruited for several years by new adventurers! The Indians are tp be fed a year at our expense. So far is well, be cause they will not starve that year. But are the prairies to be broken up, houses built, crops raised, and the timber brought forward in one year ? Sir, if a vigorous young man, going into the prairie and commencing a settlement, can raise a crop to sup port himself the second year, I take it he does well. To expect a community of Indian families to do it, is beyond all reason. The chairman ofthe committee tells us, it would be cruel to cast them off at the end of one year ; they must be helped along. Doubtless they must. And in the progress ofthis way of living, partly by the chase, partly by husbandry, and partly by alms, if a people naturally improvident do not speedily become degene- mr. Everett's speech. 287 rate and wretched, they will form an exception, not merely to all their brethren, with a single exception, who have preceded them in this course, but the laws of nature. The earnest vo lition to go is the great spring of the emigrant's success. He summons up his soul, and strains his nerves, to execute his own purpose; but drive a heart-sick family, against their will, from their native land ; put them down in a distant wilderness, and bid them get their living, and there is not one chance in fifty that they would live two years. While you feed them they will subsist, and no longer. General Clark tells you, that those who were in comfort twenty years ago must now be fed. Sir, they cannot live in these dismal steppes. They must starve; we know they must. General Clark tells us they do starve ; and when the mother starves to death, they put the living child into the grave with her ! To palliate this terrific occurrence, we are told it is common, it is incident to Indian life. But not surely among the southern Iudians. And if it is meant only that it is common beyond the Mississippi, then what an image does it not give us ofthe country into which we are driving these victims! If it were not as sterile as the desert of Arabia, it would yield enough to prevent the recurrence of such horrors. View this subject in another light. What is to keep these In dians from coming into collision with each other ? Mr. Nuttall was instantly struck with this danger ; and numerous facts and occurrences stated by him show how justly we may apprehend the effects of what he calls " the imprudent and visionary policy of crowding the natives together, in the hopes of keeping them, at peace." These 75,000 Indians, whom you propose to collect in this re gion, are not one tribe ; they are not cognate tribes. We are told, in some of the papers which have been laid on our tables, that the four southern tribes speak the same language. It is not so. The Choctaws and Chickasaws speak substantially the same ; the Creeks speak a different language, and the Chero kees still another. With these southern tribes and the north western, there is no affinity. There are between various tribes of Indians hereditary feuds. Mr. McCoy's Indians were at war with the Osages, and had been for years. You put them down side by side. You bid them hunt in the same waste. You grant the same land two or three times over to different tribes. The lands granted to the Cherokees of Arkansas had been in part given, the year before, to the Creeks. The Chick asaws are to be put down on the Choctaw lands. The new Cherokee territory runs over the reservation of the Kan- zas and Osages ; and into this territory, thus pre-occupied, you are going to pour down from fifty to seventy-five thousand more. I will cite, on this subject, a paragraph from an Arkansas paper. I pretend not to claim for it any other weight, than what it de rives from the manifest reasonableness of its purport :— " Proposed residence of the Indians. The whole country west of Missouri and Arkansas (including the forty miles severed from the lat- 288 MR. EVERETT'S SPEECH. ter) is already parcelled out to the different tribes that now occupy it. The Cherokees and Creeks are already murmuring on account of their restricted limits, and complain that the government has assigned to both the same tract of country. The productions of the habitable parts of the country, under the careless culture of the Indians, will be found not more than' sufficient to supply the wants of the present population. If the proposition respecting the formationnf an Indian colony, contain ed in the report of the secretary of war, should he adopted by the gov ernment, we will have, according to the secretary's calculation, 75,000 at one litter, in addition to those already in the country. Will he tell us where he will put them ? and how he will support them under ex isting circumstances ? I believe this.plan rational and practicable, if the Texas country belonged to the government ; but, otherwise, the restrict ed limits in which he would have to plant his colony, would render it a perfect Indian slaughter-house." There is only one way in which we can prevent this mutual havoc, and that is by the constant presence of a powerful armed force ; and on that I shall presently say a word. But the difficulty does not stop here. Where they now are, the Indians are surrounded by the population of the United State's. When they are removed, their western boundary will be open to the desert. Is that desert empty ? Is it occupied only by the buffalo? Sir, it is the hunting ground of the Pawnees and Camanches — the fiercest tribes of the continent. These are the masters in civilization, to whom we are going to send our hopeful pupils, to complete their education. Our Indians have made some progress in the arts of life ; and now we are going to put them down by the side of these dreaded hordes, who are a terror even to our own armed traders, and still realize that frightful picture of Indian ferocity and power, which, fills the early pages ofthe history of America. What must be the consequence? The answer is short : They will be destroyed. When these wild savages of the desert shall take our civilized red brethren in band, they will most probably crush them. This event can only be averted by another If the Indians, whom you congregate in these prairies can (which I do not be heve) ward off starvation ; if they take root and flourish; andif they withstand the power ofthe untamed tribes in their neigh borhood, it must be by resuming themselves the savage charac ter. If they fight the Pawnees and Camanches, it must be by again becoming themselves a warlike race. I have no faith whatever in tiieir being able to sustain themselves; but if they do, what have you effected? You have built up a community of near one hundred thousand Indians, obliged, in self-defence, to assume a warlike character, and provided, by your annuities, with the means of military annoyance. And what sort of neigh bors will they be to your own white settlements? What sort of a barrier will you have raised to protect Arkansas from the Camanches? for this is one of the prospective benefits, which have been set forth as likely to result from this measure. The impolitic character of the measure, in this view of it, did not escape the observation of the most judicious person who has mr. Everett's speech. 289 visited this country, and who, on this ground also, strongly condemns the policy of concentrating the Indians upon it. _ Sir, these alarms of war are not imaginary. A hostile incur sion was made, as late as last January, into the south-western corner of the territory of Arkansas. One citizen was killed while at work, and the neighboring settlements thrown into confusion, and threatened with being broken up. Affidavits proving the fact are on your table. A letter is before me, from a highly re spectable source in the teiritoiy of Arkansas, stating it to be now " ascertained that the Indians are preparing to make a general at tack on our frontiers in the month of May or June next." While I speak it, Sir, the savage is, perhaps, on your frontier settlements. Will he spare your own Indians, whom you propose to throw as a barrier between him and these settlements ? No, Sir ; he will consider these new comers as intruders on his own domain. The vast region to which we have extinguished the title ofthe Osages and Kanzas, and over which we propose to scatter our tribes, is claimed as their own hunting ground, by the Pawnees and Ca manches ; and you are not to suppose, that, while their war-parties are insulting the regular troops of your own army, they will re spect your enfeebled Indians. Let gentlemen read the account of the expedition sent out to overawe these war-parties during the last summer, and they will see this is to be no trifling business. Do gentlemen forget that we have already been called on for strong measures of defence ? There is now a bill on our tables, from the Senate, to mount ten companies for the protection ofthe frontier ; and it is not alone against the unreclaimed savages of the desert, that we are called upon for protection. I find, Sir, among the papers accompanying that bill, a memorial from the Legislature of Missouri, setting forth the danger to be feared from the Indians collected by ourselves, in the region beyond the Mis sissippi. In consideration of facts and representations like these, you have now before you a bill for mounting ten companies, a force equal to one tenth part of the army ofthe United States. You are act ually obliged to turn one tenth of your army into rangers, to pro tect that frontier, beyond which you are going to congregate your Indian neighbors. If one tenth are now required, can any one doubt that our whole army would be little enough to repress the incursions of the wild tribes, and keep the peace among seventy- five thousand of our own Indians, pent up in their new districts, and protect the frontier from both ? There is little doubt, in my mind, that it would require the standing army to be doubled, in order to effect these objects. And now, Sir, let us count the cost. Let us count the cost ! I do not say this is to be the governing consideration. I do not say, that, if the object could be fairly, and rightfully, and with good faith, attained, I would not go with gentlemen, who have express ed their readiness, on the hke supposition, to take a hundred mil lions of dollars from the Treasury, and pledge the public credit for a century in advance. I will decide that, when the case comes up. But I will know, first, what this movement is really to cost, 25 290 mr. everett's speech. I will not vote in the dark. I will not be amused with avote of five hundred thousand dollars, to execute a project, of which the ex pense will fall little, if any, short of five times five millions. There are several items in the expenditure requisite to effect such a movement, which, though heavy in amount, are contingent in their nature, and difficult to calculate. I shall take only such, as admit of being brought to a standard of calculation : 1st. The first item is the original purchase money ; the price we are to give for the title which the Indians have, (whatever we call that title,) to the lands they occupy. This has ever been a heavy charge in our Indian treaties. What will it cost to extinguish the Indian title to more than fifty millions of acres of land, the quantity occu pied by the Indians to be removed ? Here we can have no safer estimate than experience. I shall take, as the basis of the calcula tion, the last considerable treaty with the Creek Indians, that of Washington, in 1826. By that treaty, we acquired four millions seven hundred thousand acres of land. The amount paid for this cession, including a principal sum, whose interest would equal the perpetual annuity of $20,000, was $650,933. This sum does not include the expenses of negotiation, the value of improvements re linquished, nor the purchase of the territory west of the Missis sippi. The amount of land to be acquired exceeds fifty millions of acres ; say eleven times the cession made by the treaty of Washington, or 51,700,000 acres. Eleven times the price paid for the Creek cession amounts to $7,160,133. I deem it fair, on ev ery ground, to suppose that we shall have to pay, at least, as much for the other cessions as we did for that of the Creeks. The Creeks are the least civilized of the southern tribes, and consequently place the least value on their lands. The Cherokees and Choc taws could not, in reason or fairness, be expected to sell a cultiva ted country, for any thing like what is paid for the hunting grounds of uncivilized tribes. If the bill is passed, the Indians, in general, will feel and know that their lands will be purchased at whatever price. On all these grounds, I am warranted in taking the treaty of Washington as a safe standard for the calculation. I might. with great propriety go above it ; for it is now ascertained that a. considerable region of these Cherokee lands is rich in gold. We are informed that four or five thousand persons are engaged in washing gold within the Indian countiy, and that they get two dollars each per diem. It may not be half that ; but if it is only a quarter, or fifty cents a day, (which is likely to be nearer the truth,) it makes the country an exceedingly rich gold region. Hosts of intruders are already pouring into the country, to rob the Indians of their gold. We surely shall not imitate their example ; we surely shall not take from them gold mines, yielding thousands of dollars a day, without an equivalent* If the whole movement is not to be high-handed force in its most offensive form, we shall * Since this speech was delivered, the governor of Georgia has issued his proclamation declaring that the State of Georgia has " the entire and exclusive property in the gold and silver in the lands" occupied by the Cherokee Indians, and forbidding the said Indians to dig forthese metals m their own soil ! And the President of the United States has co-operated with Georgia in this step! mr. Everett's speech. 291 pay them something like the value of the treasure, from the pos session of which we expel them. If we do this, as we are bound, in equity and in common justice, to do, we shall have to pay, for the gold region alone, a sum equal to the whole of what I have estimated for the entire extinguishment ofthe Indian title. I am, therefore, amply warranted in taking the price of the Creek ces sion as the standard of the estimate, and putting down the first item at more than seven millions of dollars. The next item is improvements. The bill provides, that we are to pay for such as add real value to the land. This term improve ments is an expression somewhat vague in its import. But the promises which we have made to these Indians, as well as the dictates of the barest justice, will require us to make the Indians in the new countiy good. If we force them from their houses, we must build them other houses as good. We have solemnly promised we will. We shah be barbarous ourselves if we do not. We must rebuild for them, in the far distant wilderness, where wood is scarce, even for fuel, houses, mills, and workshops, such as they have left. They have expended no small sums, out of their annuities, in roads. Shall we set them down in the pathless desert, and do nothing to open avenues of communication to it, and between its different parts ? They have here extensive en closures to then- fields; we must replace these in the prairie. They have wagons, ploughs, looms, and boats. These cannot be transported but at an expense beyond their value. They must be paid for, or replaced to them. They have a large amount of five stock, most of which will be an entire loss to them unless we pur chase it, or put it in their power to replace it in the desert. All this furnishes a vast amount I will not undertake to make an estimate of my own ; but I will take one furnished from the war department, by colonel McKenney, in reference to the Chick asaws. After a detailed enumeration ofthe items ofthe estimate, he gives the aggregate sum at $484,750, for the Chickasaws alone, a tribe amomiting to four thousand souls. Now, it is perfecti|i well known, that this is not the most advanced tribe in civilization. They do not exceed the Choctaws, and they fall behind the Cher okees. I consider it, then, safe to take this estimate of the de partment, for the Chickasaws, as the standard of the estimate for the Indians to be removed. This will give us, as the value ofthe property of seventy-five thousand Indians, to be paid for, reim bursed, and replaced, $9,075,000. The next item is the cost of collection and transportation. Here we have not merely official estimates, but experience to guide us. Two parties of Creeks have been sent over. That headed by Mr. Brearley, the agent of the emigrating Creeks, cost $52,297, for 1,200 individuals. The other party, headed by colonel Crowell, cost $27,585, for 1,300 individuals. The expense ofthe first party is $43 58 per head ; that of the second $21 22 per head ; an ave rage of $33 40 Now, we are told from the department, that the price may be still farther reduced. Why ? If we form an esti mate on two fair experiments, the only reasonable mode of pro cedure is that of average ; otherwise, we may make fancied esti- 292 mr: Everett's speech. mates that it will cost nothing, supposing it may be done for less and less each time. But we are to move them by contract, says the second auditor. Not, Sir, with my consent. Though I depre cate beyond measure the passage ofthis bill, I will, if the Indians must go, vote the appropriations to cany it humanely and equi tably into execution. But I will not vote a dollar for this dread ful contract. Sir, send these Indians off by contract, and their removal will present a scene of suffering unequalled by that of a flying army before a triumphant foe. It will be the direct inter est ofthe contractors to stint them in every supply and accommo dation, and to hurry them to the utmost hmits of human strength. I cast no imputations on the contractors ; I know not who they are to be. But they are men, engaging in this business as a mon ey-malting speculation ; and the most ordinary principles of hu man nature show, that, if transported in this way, many of these Indians will be destroyed on the march. Let us have no con tracts ; but send them under the guidance of men of high respon sibility, and let us cheerfully pay the necessaiy expense. The average- expense of the two parties of Creeks, which have already emigrated, is $32 48, taking the statement of the department, in which many tilings are omitted, fairly chargeable to the account. I will, then, take the cost of collection and transportation at $30 per head — an expense less than the actual average. The result is $2,250,000 for the whole number to be removed. The next item is subsistence for oneyear. I have made some ef forts to estimate this correctly. I am convinced that in the state ments made in debate, on this floor, it has been very much under rated ; from not adverting to the circumstance which most directly affects the cost of the ration, which, we are told, is not to exceed eight cents. On application at the proper department, I learn that the cost of the ration at our several military posts, west ofthe Mississippi, is as follows : — At Cantonment Jesup, 25 miles from Natchitoches, . . 13 J cts. '' Cantonment Gibson, 600 miles up the Arkansas, .... 10J " Jefferson Barracks, near St. Louis, 6$ " And that "the great facility of transportation is the cause of the difference in price of the ration, in favor of the last named place." This is obvious ; and, in calculating the value ofthe ration, at any given spot, we must take into consideration, not merely the price of beef, aud pork, and corn meal, but that of transportation, wliich makes a difference of two hundred per cent between St. Louis and Natchitoches. Now, it is to be remembered, that this subsistence is to be furnished in the interior of a very remote inland country. At Cantonment Gibson, which is, perhaps, the farthest point on the route, to which there is navigation, the ration is 10J cents. The countiy where the rations are to be distributed, is, as Mr. McCoy says, one in which " the privileges of navigation will be very moderate. Should the teiritoiy prosper, the time will come when this circumstance will be felt as a serious inconvenience." We see how greatly the cost ofthe ration is enhanced at Canton ment Jesup, which is but twenty-five miles from Red River. MR. Everett's speech. 293 These provisions are to be carried by land where there are no roads. The chairman of the Indian committee tells us that there are fine droves of cattle on the head waters of the Washita. But the Washita does not penetrate this region, and there is a range of hills between. The ration will, unquestionably, cost more in the recesses of this countiy, than it does at Fort Jesup, within twen ty-five miles of Natchitoches. It is there 134 cents. I believe it will be twenty cents, on an average, throughout this pathless wil derness — without rivers — without roads — without population ; but I will take it at only fifteen, being but one cent and a half beyond the military ration, within twenty-five miles of steamboat navi gation. Taking the ration at 15 cents, one year's subsistence, with out any extras or any contingencies, would be $4,106,250. Does this seem a vast amount ? The operation is vast. Here is an army of 75,000 souls. Look into the accounts of war operations, and see if such an army can be subsisted hi an untravelled wilder ness, for a year, at less expense. I say nothing of the support which the government, unless it leaves them to starve, will indu bitably be compelled to furnish them, at the end of the year, and for years to come. Then, Sir, we have titles to extinguish. The Chickasaws are to be put down on the Choctaw lands. Will this cost nothing ? The basis of all our operations has hitherto been to give acre for acre. The Cherokees are to be established on lands already grant ed either to the Creeks or to the Arkansas Cherokees. Some thing must be done to quiet the claims of the Osages and Kanzas, on whose reservations we are already encroaching ; and veiy ex tensive extinguishments must be made for the north-western tribes. I say nothing ofthe claim of the Pawnees and Camanches, whose right to hunt in the whole region we must either buy out or fight out. For this purpose, numerous treaties are to be held ; and the whole aggregate expense, estimating the present value ofthe annui ties, which will probably be the form of the payment, cannot be less than one million and a half. We have, then, the following items of the expenditure, incident to removing the several nations of Indians from their native homes to the western wilderness : — First purchase of their title, $7,160,133 Expense of improvements to be paid for or re placed, 9,075,000 Collection and transportation, 2,250,000 Subsistence for one year, 4,106,250 Cost of new lands in the West, 1,500,000 $24,091,383 But, Sir, we have not done, even at this rate. We have prom ised these Indians, that, if they remove, we will keep up their schools, now existing in considerable numbers. We have a ter ritorial government to support among them, which, we are told by the department, will cost as much as that of Florida, which is about $25,000 per annum. It must be much more expensive, considering the materials to be governed, and that the govern- 25* 294 mr. everett's speech. ment is to descend to such details as counting off the trees, which each Indian family is to have in its wood lot But I take it at $25,000. Then there is the expense of the military establish ment to be kept up. I will go into no considerations to show that a very large military force, beyond any thing proposed or contem plated hitherto, will be required to keep these Indians at peace with each other ; to defend them against the unreclaimed tribes ; and to protect the frontier. I will confine myself to the expense of the ten companies of rangers already asked for. I have exam ined the report of the quartermaster general, of the 8th of last March, containing an estimate of the first cost of mounting ten companies and their annual support. Taking the cost of the horses at $100 each, which we are told by general Jesup, "it will be safer to assume," the first year's expense will be $83,750, and the annual charge, $39,875. So that the civil government of the new teiritoiy, and the military defence of the frontier, will amount to $64,875 per annum, according to these estimates. But no man can beheve it will rest within any such limits. I return to the cost of the operation, wliich I have calculated on official estimates. It is twenty-four millions — almost two dollars per head for the estimated population, at the census of this year. This enormous sum is to be raised by a tax on the people. Let us see what proportion of it is to be paid by the several States. I take the estimated numbers from a document submit ted to the House, in reference to the apportionment of represen tatives, under the new census. On that basis, there will be paid for removing the Indians, by Maine, $748,000 New Hampshire,' 564,000 Massachusetts, 1,152,000 Rhode Island, 184,000 Connecticut 380,000 Vermont, 548,000 New York, 4,080,000 New Jersey, 650,000 Pennsylvania, 2,800,000 Delaware, 156,000 Maryland 652,000 Virginia, 1,400,000 North Carolina, 920,000 South Carohna, 570,000 Georgia, 476,000 Kentucky, 1,120,000 Tennessee, 926,000 Ohio, 2,000,000 Louisiana, ' 200,000 Mississippi, 120,000 Indiana, 664,000 Illinois, 390,000 Alabama 396,000 Missouri, 290,000 mr. everett's speech. 295 I ask gentlemen from eveiy State in this Union, if they feel justi fied hi laying such a tax on their constituents for such an object? I will not admit, that my constituents are less liberal than those of any other member. They are a frugal people, Sir, and their frugality enables them to provide honorably for all just and equitable de mands of the government But if we should go home, and tell the people of Massachusetts, that we have voted away eleven hundred thousand dollars of their money to remove these Indian nations, I believe they would call us to a very strict account, — an account, which I, for one, should not know how to meet. Sir, I solemnly beheve, that I have not estimated the expense for removing this host one dollar too high ; — but take it at a half; take it at a quarter, (and the chairman of the committee tells us, it may amount to $5,000,000,) is there a gentleman here who thinks that his State, if the question were fairly put, would agree to be taxed to such an extent for such an object ? The State of New York will have to pay one million of dollars as her share of the expense, on its admitted cost. Let a resolution be introduced at Albany, ap proving such a tax, for such a purpose, and what would be its fate ? But the amount of this expenditure is not my greatest objec tion to it. The mode of its disbursement is still more exception able. The bill provides no check upon it It is placed within the uncontrolled discretion of the department. Whatever confi dence any gentleman may place in that department, such a dis cretion is at war with the character of our institutions, and is pe culiarly so with the principle of specific appropriations, which has been so strongly urged upon us as the rule of our conduct. Of all the various objects connected with this bill, and comprehended under it, no one is specified. We cannot pass our appropriation bill for the support of government, without specifying the lowest officer who is to receive a salary, and the amount of that salary ; and this, too, notwithstanding the existence of previous laws cre ating the office. Here we have a vast operation, extending to tribes and nations, to tens of thousands of souls, purchasing and exchanging whole regions, building fifteen thousand habitations in a distant wilderness, and putting 75,000 individuals in motion across the country, and not an officer or agent specified ; not a salary named ; not one item or expenditure limited ; the whole put into the pocket of one head of department, to be scattered at his will ! Sir, I impute no corruption, nor purpose of corruption, to any officer, high or low. But I say a bill like this, wliich is to send a government agent to every Indian hi the country, in order to tempt him off; which is to appraise the value of every Indian habitation, from the comfortable dwelling ofthe Cherokee, to the wretched cabin of the fugitive Seminole ; wliich is to establish a home in the western prairie for eveiy Indian who has left one east ofthe Mississippi ; and to do all this, merely under the discre tion of a department, is a thing unheard of in legislation. Sir, it must of necessity be a scene of corruption without example. Your commissioners may be men of honor and probity ; but the nature of the operation will require an army of agents and sub- 296 mr. everett's speech. agents, contractors and sub-contractors, appraisers and sub-ap praisers. Were it but for its effect on the morals of the country ,in this respect, the passage ofthe bill ought to be earnestly depre cated. And now, Sir, what is the necessity of this measure ? What is the necessity of removing the Indians ? Shall I confess my weak ness, Sir ? I have really tried to find a necessity for passing this bill. So great has been the sensibility manifested in the States most particularly interested ; so strong tiieir urgency ; so alarm ing the consequences denounced upon us, if we do not pass it, that I have tried to feel myself under a moral necessity to pass it. I would gladly have gone for it, as the least of evils. But I can not catch a glimpse of any such necessity. I look in vain, in all the documents from Georgia and elsewhere, to find a positive strong reason why the Indians should be removed. I find noth ing but vague propositions, to which (with the utmost willingness to feel their force) I can attach no clear, cogent meaning. They tell us, that, till the Indians are gone, they cannot consolidate their society, nor complete then- improvements. These generalities ear ly no meaning to my mind ; at least, none to wan-ant such stern legislation. " Consolidate their society !" Is not the social system as solid in Georgia as any where else ? "I would not hear her enemy say so." And what obstructs her improvement? Not, surely, the presence of a handful of Indians in a comer of the State. What is the population of Georgia, where there is no room for these few Indians ? It is less than seven to the square mile. We, Sir, in Massachusetts, have seventy-four to the square mile, and space for a great many more. And yet Georgia is so crowded that she must get rid of these Indians in her north-western corner ! Sir, my eye was arrested this morning by a paragraph in the paper, said to be an extract from a letter of a most worthy and estimable gentleman, remembered with regard by many who hear me, as by myself— the governor of Georgia. As it contains nothing but what I sincerely hope and beheve is true, I will quote it : — " The governor of Georgia, in a letter to a gendeman of Phila delphia, says : — " We have no such class as the poor. Our lands are so cheap, and the absolute necessaries of life so easily obtain ed, that the number of dependent poor are scarcely sufficient to give exercise to the virtues of charity in individuals. A beggar is almost as rare with us as a prince. Children, instead of being an incumbrance to the poor of our country, are their riches." [Mr. Wayne of Georgia here said — " It is true."] My friend from Georgia tells me it is true. I am heartily glad of it ; I hope it will always be true ; and I wish I had known it a week or two ago, when I was trying to prove that the tariff had not ruined the Southern States. Being true, Sir, I appeal to that high-minded people to be as liberal as they are prosperous, and leave these poor Cherokees in the possession of their native lands. I have been struck, Sir, with the prophetic import of a speech that was uttered by a celebrated Cherokee chief, on occasion of the first cession that was made by treaty ofthe lands of that tribe, mr. everett's speech. 297 in the now powerful and flourishing State of Tennessee. I wish the historian* had given it in the very words ofthe chief; for ev ery man of taste will agree with me, that, among these morsels of native eloquence, there are some which would do honor to the best days and most gifted minds of Greece or Rome. That treaty was negotiated in the memorable month of April, 1775. On that occasion, Oconnostata is said to have delivered " a veiy animated and pathetic speech. He began with the flourishing state in which the nation once was, and stated the encroachments of the white people from time to time, upon the retreating and expiring nations of Indians, who left their homes and the seats of their an cestors, to gratify the insatiable-desire ofthe white people for more land. Whole nations had melted away in their presence, like balls of snow before the sun, and had scarcely left their names behind, except as imperfectly recorded by their enemies and de stroyers. It was once hoped that they would not be willing to travel beyond the mountains, so far from the ocean, on which their commerce was carried on. But now that hope had vanish ed ; they had passed the mountains, and settled upon the Chero kee lands, and wished to have usurpations sanctioned by a treaty. When that shall be obtained, the same encroaching spirit will lead them upon other lands of the Cherokees ; new cessions will be applied for, and, finally, the countiy which the Cherokees and their forefathers had so long occupied would be called for, and the small remnant which may. then exist of this nation, once so great and formidable, will be compelled to seek a retreat in some far distant wilderness ; there to dwell but a short space of time, before they would again behold the advancing banners of the same greedy host, who, not being able to point'out any further re treat for the miserable Cherokees, would then proclaim the ex tinction of the whole race. He ended with a strong exhortation to run all risks, rather than submit to any further encroachment on their territory ; but he did not prevail !" This was in 1775. Since then, Sir, there has been more than one period, when, though we talk of "giving peace" to these In dians, we have been glad to take it ; when they hung fearfully upon the flanks of your settlements ; when Spain used them as her allies, and held you in check through them. There have been times, Sir, when, had these Indians been inspired to foresee the future, it would never have been a subject of dispute, for whose benefit the treaties of Hopewell and Holston were made. I assert, fearlessly, that there have been periods when the pres ervation by them of the faith, plighted between them and us, was an object as important to us, as it is now to them. But times are changed. Sir, in a late visit to the pubKc grave yard, my attention was arrested by the simple monument of the Choctaw chief, Push-ma-ta-ha. He was, I have been told by those who knew him, one of nature's nobility, a man who would have adorned any society. He lies quietly by the side of our * Judge Haywood's Civil and Political History of Tennessee, p. 45. 298 mr. everett's speech. statesmen and high magistrates, in the region — for there is one such — where the red man and the white man are on a level. On the sides of the plain shaft that marks the place of his burial, I read these words : — " Push-ma-ta-ha, a Choctaw Chief, lies here. This Monument to his Memory is erected by his brother Chiefs, who were asso ciated with him in a Delegation from their Nation, in 1824, to the General Government ofthe United States. He was a Warrior of great distinction : he was wise in Council ; Eloquent in an extra ordinary degree : and, on all occasions, under all circumstances, the White Man's Friend."* The chief, whose grave-stone is so touchingly eloquent, was among the head-men of the Choctaw people, who negotiated, with the present Chief Magistrate, the treaty of Doak's Stand. His name and that ofthe President are side by side on the parch ment It is well that he is gone ; for, were he alive, and did he presume to exercise the office of chief, in which you recognised him, and do the acts which it is stipulated by the treaty he should do, he would subject himself to the penalties ofthe law of Missis sippi, to be fined a thousand dollars, and imprisoned for a year. Sir, this policy cannot come to good. It cannot, as it professes, elevate the Indian. It must and will dishearten, depress, and crush him. If he has within him a spark of that pride, without which there can be no rational improvement, this gloomy policy would subdue it I have labored hard to take an opposite view of the subject ; but there is no bright side to it. It is all unmin- gled, unmitigated evil. There is evil on the other side, but none commensurate with that of this compulsory removal. There, Sir, I set my foot — it is compulsory. If you will treat the Indians as fi-ee agents ; if you will withdraw your legal duress ; if they are willing, after exploring the countiy, to go, I am willing they should, and will join in making the appropriation. But while the laws exist, beneath wliich they cannot five, it is in vain to tell me they are willing to go. How do you know it? Do- you tell me a man locked up in prison does not wish to come out? Unlock the prison doors, and then you can tell. I have heard it said, these laws are passed in terrorem ; that it is not intended to enforce them. In terrorem, Sir, and the removal still voluntary ! Are gentlemen serious ? Repeal the laws ; put the Indians in a condition to act voluntarily, and then, if they choose to go, I will not withhold my vote from any reasonable appropriation ; scarcely from an unreasonable one, to pay the cost of the removal. * Push-ma-ta-ha is said to have addressed himself to his brethren in the following manner before his death : — " I shall -die, but you will return to our brethren. As you go alon" the paths, you will see the flowers, and hear the birds sing ; but Push-ma-ta-ha will see them and hear them no more. When you are come to your home, they will ask you, Where is Push-ma-ta-ha? — and yon will say to them, He is no more. They will hear the tidings lUce the sound of the fail of a mighty oak, in the stillness of the woods." mr. everett's speech. 299 I adjure you, Sir, to recede : there is no disgrace in it. Other States, more powerful than Georgia, have receded, on points where their honor and interest were equally involved. Sir, if Georgia will recede, she will do more for the Union, and more for herself, than if she could add to her domain the lands of all the Indians, though they were all paved with gold. The evil, Sir, is enormous ; the violence is extreme ; the breach of pubhc faith deplorable ; the inevitable suffering incalculable. Do not stain the fan- fame of the country : it has been justly said, it is in the keeping of Congress, on this subject. It is more wrap ped up in this policy, in the estimation of the civilized world, than in all your other doings. Its elements are plain, arid tangible, and few. Nations of dependent Indians, against their will, under col or of law, are driven from their homes into the wilderness. You cannot explain it; you cannot reason it away. The subtleties which satisfy you will not satisfy the severe judgment of enlight ened Europe. Our friends there will view this measure with sor row, and our enemies alone with joy. And we ourselves, Sir, when the interests and passions ofthe day sue past, shall look back upon it, I fear, with self-reproach, and a regret as bitter as unavailing. Extract from an Opinion of Chancellor Kent, on the Sove reignty of the Indian Tribes. Johnson's Reports, " In the treaty between the United States and the Wyandb'ts, Otta- was, Chippewas, and others, in 1785, it was provided, that if any Indian commit murder, or robbery, upon a citizen of the United States, they shall deliver him up to be punished according to our law. This sur render of criminals is here made part of a. national compact, and the distinction is preserved between Indians and citizens ; and, while we assume the right to redress the injuries of the one, we abandon the other to the protection of their own people. The treaties with the Cherokees, in 1785 and 1791, go further, and provide, that citizens of the United States, committing robbery, or murder, on the Chero kees, shall be punished by us in like manner as if the same were committed upon one of our own citizens. They also contain a new and striking provision, and that is, that citizens settling upon their lands, thereby forfeit the protection of the United States, and the Cherokees may punish them as they please. The same provision, relative to the surrender and punishment of persons guilty of mur der, or robbery, is inserted in the treaties with the Choctaws, Chick asaws, Shawanese, Creeks, Ottawas, Chippewas, &c. And, in the treaties with the latter tribes, in 1789 and 1795, citizens settling on their lands are declared to be out of the protection of the United States, and liable to punishment at the discretion of the Indians. " It would seem to me to be almost idle to contend, in the face of such provisions, that these Indians were citizens or subjects of the United States, and not alien and sovereign tribes." Extract from an Opinion of the Supreme Court of the United States. The Court say, " The original inhabitants of this continent were admitted 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." Again : — " If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their own laws. The grant derives its efficacy from their will ; and if they chose to resume it, and make a different disposition of the land, the courts of the United States cannot interfere for the protection of the title. " The person who purchases land from the Indians, within their territory, incorporates himself with them, so far as respects the prop erty purchased ; holds their title under their protection, subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding." Close of the professional Opinion of the Hon. William Wirt, late Attorney-General of the United States. On every ground of argument, on which I have been enabled, by my own reflections or the suggestions of others, to consider this ques tion, I am of the opinion, 1. That the Cherokees are a sovereign nation ; and that their hav ing placed themselves under the protection of the United States does not at all impair their sovereignty and independence as a nation. " One community may be bound to another by a very unequal alli ance, and still be a sovereign State. Though a weak State, in order to provide for its safety, should place itself under the protection of a more powerful one, yet, according to Vattell (B. 1. Ch. 1, § 5 and 6,) if it reserves to itself the right of governing its own body, it ought to be considered as an independent State." 20 Johnson's Report, 711, 712, GoodweU vs. Jackson. 2. That the territory of the Cherokees is not within the jurisdiction ofthe State of Georgia, but within the sole and exclusive jurisdiction of the Cherokee nation. 3. That, consequently, the State of Georgia has no right to extend her laws over that territory. 4. That the law of Georgia, which has been placed before me, is unconstitutional and void — 1. because it is repugnant to the treaties between the United States and the Cherokee nation ; 2. because it is repugnant to a law of the United States passed in ] 802, entitled " an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers;" 3. because it is repugnant to the Constitution, inasmuch as it impairs the obligation of all the contracts arising under the treaties with the Cherokees ; and affects, moreover, to regulate intercourse with an Indian tribe — a power which belongs exclusively to Congress. WM. WIRT. Baltimore, June 20th, 1830. EXTRACTS from a speech of the HON. JOHN TEST, REPRESENTATIVE FROM INDIANA, DELIVERED IN THE HOUSE OF REPRESENTATIVES, WEDNESDAY EVENING, MAY 19, 1830. The first thing that strikes the mind in the case is its novelty. The government, ever since its establishment, has viewed those Indians in the light of sovereign communities, and treated with them as such. In all our intercourse with them for fifty or sixty years, we have negotiated and dealt with them as inde pendent sovereignties, without a single exception ; but this bill now proposes to change our policy, and throw all these tribes of Indians into the hands ofthe President ofthe United States, to be bargained with like individuals or petty corporations. No treaty is contemplated by the bill ; no convention with them as a nation ; but a door is to be thrown open, by which you can approach every individual of the tribe, and make a separate bargain with him for his little improvement. More of this, however, when I come to examine particularly the prin ciples ofthe bill. But I would ask, Sir, Why is it now neces sary to change our policy towards these sons of the forest ? What has produced this necessity ? Will not the Indians agree to sell their lands, and must they be made willing at any rate, and by any means ? Is it necessary to descend to making in dividual contracts instead of national ones ? If you cannot ob tain the consent of the nation to dispose of its domain, is it right and just to tamper with individuals, and thereby weaken its power, by distracting its councils, setting its members at war among themselves, creating strife, feuds and separate interests, in order to accomplish, in this manner, what you could not by fair and honorable treaties ? Sir, I have said that our policy of treating with the Indians as sovereign communities has been settled ever since the establishment of our independence; and, I will say further, it has had the sanction of all the distinguish ed statesmen and patriots from the revolution down to the present day. General Washington and his cabinet solemnly recognised the principle, as appears by the document read to the committee of the whole, by the. honorable gentleman from New York, (Mr. Storrs.) Alexander Hamilton, the elder John Adams, Mr. Jefferson, Mr. Madison, Mr. Monroe, and John Q. Adams, have all maintained the same opinion ; and the American people recognise the same principle at this moment ; 26 302 mr. test's speech. nor will they ever sanction any other, so long as the Indians remain a distinct and separate race of men. Now, Sir, what have we done, and how stands the case ? In 1785, 91, 95, and every year since, we have told these Indians, We will protect you — you shall live under your own laws — no f white man shall step his foot upon your soil — your lines shall 1 be marked — and if a white man intrudes upon you, you may punish him as you please, and we will hold him as being with out our protection. Those treaties have been renewed — they now subsist, and are in full force. The national faith, and the national honor, are all pledged for their support and mainte nance. Nay, the very same person, who now holds in his hands the national prerogative, has himself sanctioned the doctrine, and renewed all the pledges, while acting under other func tionaries of the government. And now, since he has been ele vated to the lofty station which he holds, he has reversed all these solemn decrees. He now holds a very different language. He tells the poor savage, I cannot protect you — you must sub mit to the laws ofthe States, or you must march to the wilder ness ; you must seek in the desert that repose which is denied you here. Georgia is a sovereign State — I cannot undertake to control her: she must do as she pleases with you. If I were to attempt to control her, she might do something injurious to us, and ruinous to you. Sir, this is a language the poor Indian never heard before from this government, and never had a right to expect to hear. Nor is this an overdrawn picture : it is short of the truth. I need not refer to the book containing the language: I hold it in my hand; it is on every gentle man's table in this house. The first prominent feature in this bill, and which must strike every man the moment he casts his eye upon it, is this, that it proposes to withdraw from the Senate their revisory power over the treaties and compacts entered into by the President ofthe United States. The whole burthen ofthis business is to be thrown into his hands, to be disposed of according to his discretion. No treaty is to be made in form. The bill declares " the President may lay off the districts of land," " the Presi dent may exchange lands," "the President shall do, and shall cause to be done," every thing proposed by the bill. The Sen ate have yielded themselves into the hands ofthe Executive, to dispose of, no one knows how much of the public lands,' but surely not less than one hundred millions of acres; and besides that, not less than twenty millions of public moneys ; and all this without any check or control from any quarter whatever. This enormous sum of money is to be disbursed under his dis cretion, by such persons as he may think proper to appoint, and who are answerable to him alone. All those vast con tracts are to be carried into execution by men appointed solely by the President, without consulting any power, save his own. If a petty officer of the government, without pay or responsi bility, is to be permanently appointed, the President has to ask the advice and consent of the Senate : but here, Sir, one hun- MR. TEST'S SPEECH. 303 dred, and for what I know, or any one else, one thousand will be appointed, for the disbursement of some twenty millions of dollars of public money, subject only to the will and control of the Executive. If, Sir, I had the most implicit confidence in the discretion, the energy and firmness of the President, I would withhold from him this vast power and patronage. It is pos sible he may make some improvident appointments, as we have undeniable evidence that he has done in some instances ; and the individuals appointed may make some very onerous contracts: but the moment they are made, they are binding upon the gov ernment, and you will have to appropriate money for their pay ment, because the nation is pledged to do so. Where is this vast scheme to end ? Seventy or eighty thousand Indians are to be removed across the Mississippi, and no principle estab lished upon which it is to be done, except what maybe devised by the Executive, within the provisions of a loose and indefinite bill. I ask again, Sir, if it were intended to consult the feelings ofthe Indians upon the occasion, why was it necessary to with draw the subject from the treaty-making power? Why was it necessary to throw the whole into the hands ofthe Executive, without, at least, consulting his constitutional advisers (the Senate)? He ought to have, in an affair of so much impor tance, the counsel of the whole nation. Sir, I have another insuperable objection to this bill, and one that it is impossible for me to reconcile with the duty I owe to myself. I believe those Indians are sovereign communities, at least so far as to render it necessary to hold treaties with them, as with other powers, and not mere compacts, as with indi viduals. The language of the Constitution is express, " that Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian tribes." " And that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds ofthe Senators present concur." Now, Sir, in rela tion to the regulation of commerce with foreign powers, and with the Indian tribes, there is no kind of distinction made in the Constitution between the modes to be pursued in relation to foreign powers and that of the Indian tribes : hence, I take it for granted, there is no difference allowed to be made in the mode of procedure between the two. It is to be done by trea ties and by laws in pursuance of treaties, and no other mode can' be adopted by Congress withoutwa violation of the Consti tution There is a treaty-making power created by the Consti tution and that is to be exercised in a particular way pointed out bv the Constitution ; that being the case, this house, or both houses cannot nullify or change that mode, without an express violation of its principles. What was the treaty-making power created for, if Congress may adopt any other mode they please ? I sav it cannot be done by this house, or by both houses, or otherwise the Constitution is a dead letter. If the President, bv and with the advice and consent of the Senate, is alone au thorized to make treaties, how can Congress substitute any other 304 MR. TEST'S SPEECH. mode ? No one, I believe, would be hardy enough to affirm that the President alone could make«a treaty with a foreign power; and if he cannot do so with a foreign power, I ask how can he do it with an Indian tribe, when the power to do the one is grant ed in the Constitution, by the very same words as is that to do the other. What would the people of the Union say, if Con-, gress were to pass an act authorizing the President to nego- ' tiate a treaty with England, or any other foreign power, to ad just and fix a tariff of duties to suit his own notions, without consulting the Senate or this house ? Would they not say the act was unconstitutional, as well as an infringement of their rights? Would they not say, that was a power they never authorized us to confer, and pronounce us usurpers for doing so ? They certainly would, and justly too. I say, Sir, would not such a proposition shock this nation ? And yet this bill proposes to do what is in principle precisely the same thing, and, indeed, a scheme of equal magnitude, and of more alarm ing and dangerous consequences. Sir, I have but a few words more, and I have done. There is one feature in the law of Georgia which I have not mentioned, and which is perhaps more onerous and more calculated to secure impunity to the wicked and malevolent, in the violation ofthe rights of the Indians, than any other : it is this, that no Indian can be received as a witness against a white man. Now, Sir, I would not find fault with such a provision, if Geor gia did not compel them to submit to her own laws : if she permitted them to be governed by the rules and regulations which they prescribe for themselves, they would have no right to complain, or, at least, not the same right ; or if she limited the provision of the act to her own acknowledged dominion, and did not extend it to the lands and villages confessedly be longing to the Indians ; but as it stands, how does it operate ? Why, Sir, the whites may go into: their towns, and murder men, women and children with perfect impunity, unless, indeed, there shall happen to be an honest white man present, which will hardly ever be the case. The whole of the intercourse laws of the United States are let loose, and rendered null and void by the construction given them by the President of the United States. And white men are permitted by the laws of Georgia to go among them whenever they please ; and, indeed, the ex ecutive officers are paid^ mileage for going ; and when there, they have a perfect immunity to commit every kind of outrage upon the Indians, because there can be no witnesses agamst them.