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dian nations to abandon their country, and seek a new
home in a distant land, he has explicitly stated, too, that “they should be distinctly informed that if they remain within the limits of the States they must be subject to their laws"—and that, “in return for their obedience as individuals, they will, without doubt, be protected in the enjoyment of those possessions which they have improved a by their industry. But,” he adds, “it seems to me vision. rary to suppose that in this state of things claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain, or passed them in the chase.” These are the doctrines of the Executive, in the words of the message. They are little short of a copy of their original, and I might almost as well have read them from the report, and resolutions of Georgia. These are .doctrines, too, which the United States set up in the face of the treaty of Holston! The guaranty of that treaty, sir, i was to the Cherokee nation, and to the lands of the nation, and not to individuals. Now, what, on the other hand, is the palpable operation, indeed, I may say, the express *enactments of the laws of Georgia, but to annihilate completely the political capacity, and abolish the Government of the Cherokees, and reduce them all to individuals There is to be no longer any nation there. In the language of the message, they are to receive protection hereafter “like other citizens”—of Georgia, I presume—and not from the United States. . The other party to our "treaty no longer exists. The bill before you follows out these principles, and authorizes the President to purchase * the improvements on the lands of the Cherokee nation from the individuals who happen to cultivate them for the time being, under their own regulations among them. *selves, and expressly prohibits any Cherokee, from re-oc* cupying them afterwards. These lands then pass to * Georgia under our compact. The Executive has expressly yielded to Georgia the power to accomplish this object, by the extinction of the national capacity of the Cherokees under her laws. It is an idle waste of words to enter upon * any formal reasoning to show that he has thus assumed the 'power to abrogate the treaty itself. If he has the power 'under the constitution to do what he has done, it is a nere mockery, and an insult to the Cherokees and to common sense, to talk about the treaty of Holston as a thing which has any existence. I do not i. whom he may have consulted or who has recommended to him the course which he has seen fit to adopt with this treaty ; but I trust, at least, that this illustration of our notions of public faith has received no countenance from that member of his cabinet whom we have been accustomed to consider as stand. ing in the nearest relation to his person, and whose duties have made him the confidential adviser of the President in negotiations with other powers. . At the threshold of this inquiry, we shall find ourselves met with a very grave question, intimately connected with the treaty-making power, which I hope those who intend to sustain what has been done, will be able to answer to the satisfaction of the House. I am the more anxious to know their views of it, as we have heard some specious appeals to the friends of State rights, to come forward on this occasion, and sustain their principles. The alarm has been sounded, and they have rushed to the standard with an alacrity which leaves us no reason to doubt that they have really believed their favorite doctrines to be in jeoPardy. I fear that these appeals have had some influence upon the question before us. Their principles, or at least what others have assumed for them to be so, have been Pressed into service with a zeal indicative of such confidence, that consistency required them to come forward, and give their support to the course which has been taken by the Executive with these treaties. If there was any point on which, more than any other, the opposition to the adoption of the constitution original.
ly turned, and the influence of which has been felt by one of the great parties which divided the country, it was the apprehension that the new Government was either too monarchical in principle, or would turn out to be so in practice. This alarm, too, was chiefly founded on the opinion that the constitution had provided no adequate security to the States, by imposing definite and effectual limitations on the executive power and executive discretion. It has been a fruitful source of crimination, whether just or unjust, upon one of the parties, and especially upon General Hamilton and his friends, that the tendency of their principles, and the measures which they had advised was to invest the President with powers, which must prove fatal to the wholesome influence of the House of Representatives, and destroy the control of the States in the Senate. Under these banners battles have been fought and won— and laurels have either been or thought to have been gathered. They have certainly been claimed as the rewards of victory, and are even yet worn here as the hereditary honors of the field. * The question before us does not involve the right of the President, in the recess of Congress, to decide, in the first instance, for the regulation of his conduct until they can be convened, the mere construction of the terms of a treaty—nor to determine the effect of an infraction of any of its engagements by the other party. There is o: ambiguous or of doubtful interpretation on the face of the Cherokee and Creek treaties, and no pretence has been set up that they have been disregarded by the Executive, because these nations have not observed them on their part, and kept their faith with us honestly. They were well understood originally on all sides, and are framed in language that cannot be perverted. . There can be no quibbling as to the real intention of both parties. The terms are not susceptible of different significations, and the expressions used are definite, and suitable to the subject-matter of them. It is enough, however, that the 2xecutive has not assumed to act on this ground, and the complaints of bad faith are, unfortunately, all on the other side. Nor are we examining whether the casus foederis has occurred under any treaty with a third party, by which any engagements on our part, not operative before, have come into force. He claims the broad power that it is for the Executive to determine the abrogation of our stipulations, because Georgia has enacted certain laws for more effectually exercising the jurisdiction which she claims over the Cherokee nation and their lands. He maintains the right, in that department of the Government, to treat the obligations by which the United States are bound on the face of the treaties, as annulled from that time—that they shall be reduced to mean nothing any longer—in a word that from that time they have no existence as treaties with the Cherokee or Creek nations. This is the doctrine which must be sustained, and it is this stretch of executive power which must be vindicated by those who support the measures of the President. The doctrine will reach our treaties with other powers, too, as well as those now before us; for we are examining the right of the Executive Department to determine such a question at all, in any case, and not whether he has decided it correctly in this. But, sir, the power asserted will be found to be much higher than the Executive claims, it to be. The assumption on which it ostensibly rests in the message, is, that, by the happening of the contingency that Georgia has “extended” her laws over the Cherokees, the treaty has now come into collision with the jurisdiction of the State, and must therefore be yielded. But the principle which lurks under this disguise, really goes to the total annihilation of the treaties from the beginning, and assumes that they were never binding on the United States at all. If they ever were so, no act of one of the States could discharge our obligations. The jurisdiction of Geor. gia must have been as perfect when these treaties were
first made, as it was in 1827, and the general laws of the State must have always been applied, to the Cherokee country. If the treaties are invalid now, they were always so. The right of Georgia to the improvements of the Cherokees, too, is as perfect as it is to their vacant lands—there is no hiding place half way. There is no middle ground on which the Executive can stand. I doubt if there was ever meant to be any, for less than the whole would not reach the object to be attained. The principle set up cannot be arrested at any point short of the total prostration of the treaties, and the unqualified power in o Executive to mould and fashion them, and to annihilate these, or any other treaties, at his own will and pleasure. He asks no advice from any other department, and consults no co-ordinate branch of the Government. He acknowledges no obligation to submit such a question to Congress, or even to the Senate. His march is onward to the direct accomplishment of the executive will, as if the whole action of the Government on this subject was the exclusive attribute of executive power. It is this, sir, which has led to all our embarrassments, and brought about the present disorderly condition of the Government in this matter. It is to support measures and doctrines like these, that appeals have been made, on this occasion, to the friends of State rights. I think that, if they examine their principles carefully, we have reason to believe that they will be found on the other side of the question. It is well known that the disposition of the treaty-making power was one of the most difficult points to be settled in the convention of 1787. In Europe, it was in the hands of the sovereign, and was liable to the greatest abuse. It had been used there for personal objects, and peoverted to the most mischievous ão: of ambition. The whole policy of many of the European Governments had been seriously involved in the exercise of this power, and it had led to measures the most fatal to their prosperity and peace. Indeed, sir, many of the calamities, which they suffered for a century, may be traced to the abuse of this power in the hands of the Crown. It was in the view of this evil, that under our constitution it was considered unsafe to trust it to the Executive. In Europe it was prerogative, but here it was to be limited by the constitution, and subjected to the control of the States in the Senate, where their sovereignty was equal. It was a political power which so seriously affected the general policy of the country, in its relations with other nations, as well as in its operation on the prosperity of the States at home, that it was even considered unsafe to entrust it to a majority of the States, and the concurrence of two-thirds of the Senators was therefore required. For this purpose the Senate is the council of the States, and the treaties are the acts of the States. The Executive is little more, in that respect, than the agent or organ of the States, in matters of negotiation. He may refuse to act at all, and shut the door of negotiation, or decline to submit his preliminary arrangements to the Senate. This was deemed to be quite as much power as could be safely trusted to his discretion. His will or his opinion, however, was nothing without their sanction. The treaties, therefore, express the will of the States, and not the capricious inclinations or the pleasure of the Executive Department. They would have been the supreme law of the land under the law of nations, without any express provision in the constitution, but that sanction has been superadded, that there should be no question of their supremacy. As they constitute the public law of the country, the treaty-making power was withheld from the Executive, because, under our constitution this was to be a government of law, and not of prerogative, and especially not of executive prerogative; for if his will was to luave the force of law, that was, to a certain degree, despotism. When the executive and the States have entered into a treaty, the constitution has attached its sanction to it, and given it all its efficacy.
Its validity rests upon that, and its force and operation are sustained by that. When once fixed, and adopted as the law of the land, the Executive has no dispensing power. His own duty is plainly prescribed in the constitution. The on trol of theStates over his will has been constitutionally inter. posed to very little purpose, if treaties are to take effect of not, or be j in their operations afterwards, at his leasure, without any violation of them by the other party. hey are clothed with a sanctity which entitles them to bigher respect than our mere municipal regulations. There are two parties to them, and the public faith secures their in .. And yet it has been gravely asserted, and a tempted to be maintained, that after the States have enter. ed into treaties, the Executive may revise their solemn acts; that he may judge over the States and above the States; that he may entertain an appeal from them to him. self or his cabinet; that he may virtually abrogate their treaties by an order in council, and give the force of law to an executive proclamation. The treaties and the law of nations constitute the public law of the Union. They deeply concern private right as well as the political rela: tions of the country. If a question should arise between one of your citizens, and the Government, or a foreign power, would the judiciary regard an interposition of th: executive power, which professed to exercise the right of impugning the integrity of your treaties? The power, sir. to adjust and settle the conventional law of all countries, must exist somewhere in all Governments. It is vested here in the States themselves, and, when they have ests. blished it, the political rights of others become irrevocable. You are denied the power of unsettling it, or revoking your obligations at your own pleasure. Above all things. we have never trusted the Executive with that dangerous prerogative. The Senate was vested with the power to determine the conventional law of the Union, because they are the peculiar guardians and conservators, as well as the representatives of the States, in the exercise of that fune. tion of their sovereignty. In such matters as, in the exer. cise of this high political attribute, might affect her citizens or their own jurisdictions, it could be safely trusted nowhere else. The individual States were denied this power, because that might defeat the conventional law of the whole. There is nothing new, or suggested now for the first time, in that operation of treaties which to some extent affects and controls their domestic jurisdiction, and impairs, in some degree, what gentlemen have so tena: ciously held to as the reserved rights of the States. Every treaty of limits must have that operation. The treaty of 1783 abrogated all the State laws which impeded the re. covery of British debts, and prohibited the States from passing any in future. Yet the old Congress had no juris. diction over that matter, except as the result of the treaty. making power. In the letter of Mr. Jefferson to Mr. Hammond, of the 29th of May, 1792, he says that it was always perfectly understood that the treaties controlled the laws of the States—the confederation having made them obli: gatory on the whole; that Congress had so declared and demonstrated them; that the Legislatures and Executives of most of the States had admitted it; and that the judi. ciaries, both of the separate and general Governments, had so decided. He stated further, that the formal repeal of the laws of the States was all supererogation, and showed that Georgia herself had so considered it, and her courts had so adjudged. It is everywhere considered that thess laws of the States were annulled by the treaty. It would be quite easy to refer to numerous instances of the same sort, in various treaties since the adoption of the present constitution. As it was foreseen that such must ..P deces" sity be their effect by the law of nations, that feature of the old confederation, which retains this power in the hands of the States by the federative representation of these sovereignties in the Senate, is continued under the present constitution. It was eonfided to, or rather reserv
ed to, the States there, as a political confederation of sovereignties, that they might determine for themselves how far and to what objects the conventional law of the Union should be extended. It is not, in any sense, the dismemberment of the sovereignty of the States: that suggestion is a mere abuse of words. It may as well be said that the sovereignty of a particular State is dismembered by the constitutional operation of the laws of Congress for regulating the commerce of the country. The thing of which gentlemen speak is the totality of sovereignty, which exists nowhere under our institutions. I consider that the States have, in the strictest sense, retained to themselves, in the Senate, their own control of their reserved rights in the exercise of the treaty-making power. It is safely placed there under their own conservation, and they are bound in good faith to the Union to respect the treaties which are there entered into. They are represented and act there as in their original capacity. They could not act with eonvenience or usefulness in any other way. Their rights are safe in their own council. What is constitutionally settled becomes their public law, and they are bound to observe it. It is not perhaps strictly a legislative power, though Mr. Madison, has treated it, in a publication to which I shall presently refer, as partaking much of that character. The constitution declares that "all legislative powers" therein granted shall be vested in Congress. It is not, however, essential to the views which I take of the question, to consider that point. The course of the Executive Department has overturned these constitutional securities of the States, and swept away their power. His doctrines fall nothing short of an assumption of the power of Congress to abrogate the public trea: *ties in a case of high and uncontrollable necessity, or by exercising the power of declaring war. If the friends of State rights propose to sanction the violation of these Indian treaties, they must bear him out to the full extent of this thoughtless usurpation. This question is not altoge: ther new, though no stretch of executive prerogative like this has ever before occurred or been claimed under any administration. I presume that gentlemen are familiar with the history of the proclamation of neutrality, issued by General Washington in 1793. This declaration by the President of the disposition of the Government to remain at peace, and warning our citizens to abstain from any acts that might involve them or the Government in the war, was Mooked upon with jealousy. It was a topic of much remark, and was closely scrutinized. Yetit violated no treaty. It assumed to suspend none of our obligations, and settled no question arising upon them. General Washington neither claimed or exercised such a power. The proclamation was precisely what it professed to be, and no more. The administration assumed a posture of neutrality, and the proclamation declared the intention of the President not to change the relations of the Government, until Congress should convene and settle that question. In the mean time, our citizens were forewarned, that, if they mingled with the parties to the war, and took part with either side, the Government would not extend its power for their protection. It was unanimously sanctioned in the cabinet. Mr. Jefferson approved it, and has informed us that he “admitted that #. President, having received the nation, at the close of Congress, in a state of peace, was bound to preserve them in that state till Congress should meet again, and might proclaim any thing which went no further.” Whether the proclamation was to be treated as o: ing a pledge of future neutrality, was another matter, and a speculative question. But General Washington and his administration were uncommitted to any such construe. tion of it. It was an abstract question, and the President, at the opening of the next session of Congress, laid the whole subject re them for their constitutional action opolit. General Hamilton fully declared that no opinion of the President, on the point of neutrality, or the Frenchgua. | Wol, WI-126.
ranty, could in the least affect the question; and the message simply announced theissuing of the proclamation and its real. object. Mr. Madison has furnishedus with his opinions on the nature of the treaty-making power, in the letters of Helvedius. The friends of State rightsmay clearly seein thatcom. mentary, in what direction the Government is advancing, if the measures of the Executive, since the adjournment of the last. Congress, are sanctioned by this House. The power he has exercised involves the assumption of the most transcendental sovereignty of the States, and prostrates every other department of the Government, "The Executive may in other ways bring you into collision with foreign nations on his o: to those who may constitutionally call him to answer; but, in the case before us, I consider that he has acted by open usurpation. It should be quite enough that he may, in the exercise of his confessed powers, force you into war against your own will, without yielding to him the power to enthrone himself above the constitution. If on any question which involves the construction of a treaty—much more its validity —he may assume the powers of the Senate, the Judiciary, and Congress, there is no longer any power in the Government which can be said to have been limited by the constitution at all. It is a bold step indeed of executive prerogative; and I have been surprised to find that gentlemen in this House have sat down so quietly under it. I was anxious, in the o part of the session to know how it might be received by the Senate, but my doubts were * removed when this bill appeared at your door. They have capitulated. They are completely disarmed, and have been marched out of their entrenchments with: out the honors of war. The duty of the Executive in this matter was exceedingly, plain. If he doubted as to the validity or operation of these treaties, the examples of his predecessors were before him. He should have at least paused before he moved so rashly—have kept all things in the condition in which they stood, and submitted the whole case to Congress. The first suggestion made to the Cherokee delegation was right, and it is to be lamented that it was ever revoked or withdrawn. "What is to be our security for our o treaties? If the Executive doubts as to the construction or validity of those, too, shall he cut the knot for o: and dissolve their obligations? Our commercial trealiès have no greater sanctity than any others. Is your foreign trade and intercourse with other nations to be at o mercy, too? I am not aware that the laws of Congress have any greater sanctions than your treaties. You have many treaties with other nations for the advantage of your citizens. Shall the Executive so deal with these, too, as to prostrate your navigation, or subject it to retaliation? He may A. the stipulations of treaties made to favor your own trade; for if he can overleap the law of nations and the constitution, by revoking those which favor others, you have no better security than his will for yourselves. He can release them from their stipulations in your favor, as well as those which operate against them. *. should think that all his predecessors and former Senates have been wrong headed on other points, and that they have been too liberal to particular interests, or have favored commerce, or navigation, or manufactures too much, it is only for the Executive to put forth his prerogative, and your constitutional securities are in his hand. I am ready to admit that a case of high and uncontrol. lable necessity may occur, so deeply involving the fate of the country, or so seriously affecting its safety, that the President, submitting himself to a high responsibility, may feel it to be his duty to decline the execution of a treaty until Congress can be convened. But his duty in such a case is very clear. He may suspend acting upon it altoether, but he has no#. to determine such a question ly for himself. He must submit it to Congress. If a treaty is to be declared yoid, it is for Congress only to an
nul it. The President and Senate cannot do it unless by negotiation. But, sir, these are extreme cases, and that before us is not one of them. The President has not acted, or professed to act, with any such views. . He has given to §. other party his own final determination of the question, and has acted upon it throughout. . He declined to ...F. the matter at all till the case could be sent here, and directed the Secretary of the War Department to inform the Cherokee delegation that the course of the Government was changed, and to communicate to them his final decision. He asks us now for no opinion upon it ; but, considering it settled, we are called upon to appropriate some millions to relieve the other party from the condition to which his decision has reduced them. I know that there is apathy here under these assumptions of the Executive, but we are bound to resist these encroachments on the powers of Congress at the beginni This is not a distant alarm—the invader is within this hall—his manifesto is on your table, and at the next step we, too, shall have surrendered at discretion. I have often thought that, after all, those who usurp authority were not so much to blame as we commonly consider them to be, when we find others so ready to yield up the powers of Government into their hands. Rome preserved her liberties until her É. councils prepared the way for one family to esta:
lish itself on their ruins ; and the Tudors and Stuarts did not rule in England by proclamation, until servile Parliaments looked upon the advances of prerogative at least with indifference. If these encroachments of the Executive Department are not met and repelled in these halls, ji be resisted nowhere. The only power which stands between the Executive and the States, is Congress. The States may destroy the Union themselves by open force, but the concentration of power in the hands of the Executive leads to despotism, which is worse. Qf the two evils, I should prefer the nullifying power in the States —it is less dangerous, and admits of surer remedy. A single State may occasionally sit unquietly under the mea: sures of Government, but the good sense of the people will set all things right in the end. But the Executive De: partment never yields up power. The whole Union will, sooner or later, feel the shock, if this control of our trea. ties shall be surrendered—the mischief will reach everywhere, and is irreparable. The judiciary may partially protect individual-right, but there are two parties to the treaties, and one of them will not always be under your control. We have already reached a point in ol. at this session, where we should pause, and seriously consider in what spath we are advancing. There are several bills now on your table, formally prepared in the committee rooms of this House, and reported here, which confer powers of an extraordinary character on the Executive. When you shall have passed the bill now under consideration, which places }. territory west of the Mississippi at his sole disposal, the two bills relating to the army and navy, the reciprocity act reported a few days ago by one of my colleagues, and yielded up the power claimed over your treaties, this Government will scarcely be a masked monarchy. The constitution will have become blank paper, and the first dictator may come to your table and write his decrees upon it at his pleasure. It may not become me to address an admonition to this House, and it would profit nothing from me, or any man, if history has already done it so often in vain. But it is at least time for us, as prudent men, to open that book, at almost any page, and read the fate of all republics that have gone before us and perished; or, if we are not admonished by the ast, to look around us, and see what is passing in the world in our own day. What is now the condition of South America, in whose emancipation we felt so deep, an interest, and where we hoped to find the cause of free Government strengthened against the alliances of its enemies? Disunion
has blasted our hopes. Slavish Congresses have there be
trayed their country, and the power of that whole cont. nent is swayed by bands of reckless despots. Yet while their liberties have been crushed, we find in Europe, tho, in spite of the power of kingly alliances, the Parliament of one Government at least, and that, too, once the most despotic of them all, is successfully limiting the power and "influence of the Crown. Shall we, then, strengthen the hands of the Executive here as one of the securities of the rights of the States I know very well the answer who gentlemen are ready to offer on this occasion. We are to be told that his decision has been in favor of the States. It is this which lends us to look upon his measures with comple. cency, and this is the soothing opiate by which he has quiet ed our fears. I should like to hear the answer to another question: What will be the decision of the Executive in the next case? Will that be in favor of the States, or against them I will tell you, sir. They will not be suffered to ask that question. When they have conceded the power to settle such a matter for himself, the Executive will take care to exercise his new prerogative without cousulting them. We may see on this occasion in the clearest light the tendency of executive power in those collisions which occasionally spring up in every Federal Government be tween the members of it and the head. This departmeo is constantly on the watch, and seldom fails to secure t itself the arbitrament of every such matter. This third party is ever lying in wait for power. Under some plat. sible disguise it attracts the confidence of the parties and not unfrequently, by appeals to the pride as well as the interests of the States, it secures itself in its usurpation and leads them willingly to rivet their own chains. If the Executive had decided that all our former treaties with the Cherokees and Creeks had been void as to the eessions to land which some of the States have received under them should we not have witnessed a very different feeling here Should we not have heard something—and that too, quite earliestly—of plighted faith, of solemn treaties, and the constitutional securities of the States? By what process of infatuation, or by what operation of self-love or State pride, have we brought ourselves to yield to the Executive the power to pronounce these treaties to be worthless to the other parties There can be no tyranny worse than that which refuses to be governed by its own rules. I find that we have entered into more than two hundred treaties with the Indian nations since the declaration of independence. Fifteen are with the Cherokees alone, and all but one of these have been made since the adoption of the present constitution. They have been made under every administration from the time of General Washing. ton. Commissioners for treating have been nominated to the Senate, and regularly commissioned for this purpose Every Senate, since 1789, has ratified them, and they are proclaimed by the Executive like all other treaties. The statesmen whose names have sanctioned them, are, Washington, Adams, Jefferson, Madison, and Monroe. " I see among them, too, the name of the present Chief Magis. trate. It is in the face of such a case as this, that we have heard the validity of Indian treaties denied, and the his. tory of this Government, for half a century, treated as a deliberate system of jugglery and imposture. If there is any foundation for the doctrines which have been put forth to justify ourselves in disregarding these treaties, we are bound to make out a case so clear that no plausible doubt can be started against us. Our path must be free, oper. and unobstructed, and we must not only see that we end go there, but that we can do it with safety and honor. It there can be any doubt, it becomes us, if we regard our faith, to ask ourselves, as honest men, which party is entitled to the benefit of it in morality t—the ignorart or the enlightened?--the weak or the strong —the defenceless or the powerful? We should take care that on such a question it shall not be said of us that we have throw,
our sword into the scale. The Cherokee treaties, and e.
guaranties to them, have been made for compensations granted to us on the face of them. Now, what says natural justice in such a case ? You have taken these compensations, and are in the enjoyment of them to this day. Can you restore to the other party what you have taken from him, and what you tempted him to yield to you? Can you give back the rights j. he has surrendered Can you place him in the situation from which you have enticed him Is this now in your power, if you were even dis. posed to do it? These are questions, sir, which will be asked, and they ought to be asked. It is better for us to ask them now ; for they must be answered, too—and answered honorably, for you or your country is disgraced before the world. You are handling no light or trifling matter. , You are pressed on every side by circumstances which should constrain prudent men to look well to their ...r. While these treaties are lying open before you, and you are compelled to look such an array of names as these in the face, he must be a bold man, and one having a very good opinion of himself, who can step forward and efface the most honorable portion of your history, and hold up the illustrious men who founded this Government as ignorant of the first principles of the constitution. I have too much confidence in the honor and justice of this House, to believe that we are prepared so soon to blemish the reputation of those names which we have been taught
to venerate from our childhood.
I have carefully examined the report of the Committee
on Indian Affairs, to find on what ground this bill is to be
supported; and, great as my personal respect is for the
gentlemen who are on that committee, I am constrained
Before I proceed to a more particular examination of these positions, which have been advanced with so much confidence, I feel it to be a duty to the State which I have the honor in part to represent here, to say something of her policy towards the Indians within her limits. I have been somewhat surprised to hear on several occasions during this session, that New York had some interest in this question, and that her policy since the revolution would be found to sanction the principles which have been advanced in relation to the Cherokees. I feel bound not to let this opportunity pass, without setting that matter right. I deny, sir, that there is any just ground for these !' assertions, and more especially I deny that she has mainstained any doctrines which go to impeach the sanctity or * impair the obligations of any treaties made by the General * Government with the Indian nations in that State. By the streaties of Fort Schuyler, of September 12th, 1788, September 22d, 1788, ...}. Albany, of February 20th, 1789, the Onondagas, AQueidas, and Cayugas expressly ceded
and granted all their lands to that State, and the occupation of certain portions of the lands thus ceded was allowed them by the State in the same treaties. The Stockbridge and Brothertown Indians came into that State from some of the New England States. None of these tribes therefore hold any lands there under their native or original title. Whether they are to be treated as aliens or not, or whatever their relation to the State may be, they are subject, like all aliens as well as citizens, to the criminal jurisdiction of the State. But as these tribes as well as others have been placed under her protection, she has recognised her obligation to secure them against the frauds and encroachments of white men. She was bound in the treaties I have referred to, to do this as to their lands, and she has ever respected them honorably. Accordingly, it has been made unlawful for her citizens or any other than Indians to settle among them, or to purchase their lands, or to prosecute against them any action upon any contract in her courts. Surely New York may regulate the conduct of her own citizens in these matters as she pleases. But she has not stopped there. Agents and attorneys for them have been appointed, and paid too by the State to advise them in controversies among themselvés or with others, to defend them in all actions brought against them, and to prosecute for them. Yet I find these laws, passed for their protection, among those gravely reported from the Committee on Indian Affairs under a resolution of this House, and laid upon our tables, to show, I presume, that New York claims the same power over the Indian tribes and their lands, that Georgia, Alabama, and Mississippi have done over the Indians, within their limits. Why, sir, if these laws are carefully examined, they would show nothing to that effect, if these Indians ...} held their lands and sovereignty under their native claim and right. So careful has §. York been on the point of Indian title, that, although the Mohawks were driven into Canada at the close of the revolution, and their country wrested from them by actual conquest, we find that as late as the 29th of March, 1797, she purchased their title at a treaty held at Albany under the authority of the Federal Government. It purports to have been made with “the Mohawk nation of Indians residing in the province of Upper Canada, within the dominions of the ki. of Great É.i. in the presence of Isaac Smith, a commissioner appointed by the United States. By another treaty, held at New York on the 31st of May, 1796, the State purchased of “the Seven Nations of Indians of Canada,” all their claims to lands within her limits, reserving a small tract at St. Regis. The Seneca nation still claim to hold their lands under their original title. But New York has no interest in them. The pre-emptive right was conveyed to. Massachusetts many years ago, and is now held by individuals under purchases from that State. I have noticed in the Executive Journal, that on the 24th of February, 1827, a conveyance by treaty from the Seneca nation for part of their lands to some of these individuals, made in the o: sence of a commissioner of the United States, was laid before the Senate by Mr. Adams. On the 29th of February, 1828, a resolution to ratify it was negatived, the Senate being equally divided on the question. On the 26th of March, the following resolution was submitted by one of the Senators from Georgia, [Mr. BERRIEN.] “Resolved, That by the refusal of the Senate to ratify the treaty with the Seneca Indians, it is not intended to express any disapprobation of the terms of the contract entered into by the individuals who were parties to that contract, but merely to disclaim any power over the subject-matter.", This resolution was modified on the 4th of April, by omitting the latter words, and inserting so as to read, “to disclaim the necessity of an interference by the Senate with the subject-matter,” and passed in that form. These pro