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H. OF R.)
Removal of the Indians. »
(MAY 15, 1830.
ceedings struck me as somewhat novel, and I find that the case before us here. Upon these, it is silent. It is very Sepute departed in this instance from its former practice obvious how the court were led to the conclusion to which on the same snbject under Mr. Jefferson's administration. they came. No one can read this opinion, and fail to set The treaties between the Senecas and Oliver Phelps, as well that they relied chiefly on the effect of the act of April as the Holland Land Company, for perfecting the same pre- 12th, 1822. The bistory of this act is well known to every emptive right, were laid before the Senate by Mr. Jeffer. lawyer in that State. Soodoogize, a Seneca Indian, bsd sou, and formally ratified like other treaties. There was been indicted for killing an Indian woman within the Sede but one dissenting vote, [Mr. Wright, of Maryland.] Nei
: ca lands. She had been put to death under the authority ther Mr. Jefferson nor the Senate appear to have then of the Seneca chiefs and sachems. He pleaded to the jt thought that this was an interference in any matter beyond risdiction of the State tribunal, and the question came be "their power. How soon afterwards it has been discovered fore the Supreme Court for their opinion, in 1821. It wa to be so, I cannot say. It may, perbaps, be inferred that fully discussed by the Attorney General and the counsel
this treaty was considered more in the nature of a private for Soonopgize, (Mr. Oakley) and the learning, research, contract, than a political treaty in the sense of the constitu- and ability displayed in that argument will be loog re tion; and the conclusion to wbich the Senate came may ad- membered at the bar, and in the courts of New York I mit of that explanation. But I think that the proceedings recollect well the general impression at the bar at that time followed too close upon the Georgia resolutions, to autbo- on the point. The court held the case under advisement rize us to consider it as a grave precedent in its bearing on until the next winter. They found no principles on which the question of State Sovereignty.
they could safely affirn, iu a judicial opinion, the jurisdieThe committee bave referred us to an expression found tion of the Staté court. They reported the case to the Go in an opinion delivered in the supreme cvurt of New York, vernor, and recommended that the question should be sub by the Chief Justice, in which they came to the conclu- mitted to the Legislature. The act of 1822 was passed sion that the Indians were to be considered as citizens of There was, however, no Indian land to acquire. No ende the State, and capable of taking by descent. They have of Indian crimes was enacted, vor were Indians disqualified copied into their report an extract of balf a dozen words, to testify in any case. The object and spirit of it are very in which the Chief Justice said that he "knew of no manifest in the recital which precedes it
. It states that half-way doctrine on this subject." It would be quite the Senecas had exercised the power of puuishing, erea enough for New York to say, in answer to this case, that capitally, individuals of their tribe ; that the sole anderthis opinion was afterwards reversed in the court of errors clusive cogvizance of crimes belongs to the State; and with great upadimity, and this very point was then fully that to protect the Indians, this jurisdiction ought to be az examined by the chancellor. But it would have been more serted to that extent. Now, sir, what was the case before fair to bave furnished us here with a somewhat larger ex- the Legislature l aud on what motives did they'acti They tract from the opinion of the Chief Justice. The context saw that death was inflicted upon the Sepecas under their would bave shown us more clearly the views which led the bloody code and summary Indian forms, with no regard to court to the conclusion to wbich they came. He says that proof or any security for the fair investigation of truth. the court “ do not mean to say that the conditiou of the Crimes, too, were of the most fanciful ebaracter. Sorcery Indian tribes, at former and remote periode, has been that and witchcraft were among them. The system was, in itof subjects or citizens of the State. Their condition bas self, flittle less than murder. There was some form or been gradually changing, until they have lost every attri- mockery of inquiry before the obiefs, but nothing like trial
. bute of sovereignty, and become entirely dependent upon, The foundation of what we call punishment had no referand subject to our Government. I know of no balf-way ence among them to the protection of their society, but doctrine on this subject." Now, sir, I think that the fair was rather
the infliction of personal retaliation or private import of this is rather against the position taken by the revenge. I believe that the case oi Soonopgize partook committee. We all admit that there is no balf-way doc- somewbat of that character, but I do not recollect the cir tripe on this point. Every candid map will admit, too, that cumstances well enough to say that I may not be mistakes a tribe of Iudians withio any of the States may so far on that point. The intention of the Legislature was to dwiddle away, or abandon their right to self-government, rescue them from this conditiou-to extend to them, if á and so far dissolve their original institutions, that they may could possibly be done, some security against the inhuman be considered, on the soundest priociples, to bave become proceedings of this Indian code to afford them a fair and "merged in our society, and extinct for all political purpo. impartial trial-a trial by testimony--the aid of counsel, and Bes as separate communities. It would be very easy to re- the security of a jury. "It was felt that the State owed it fer you to cases of that sort in New England. The Chief to humanity to the unfortunate people cast upon her proJustice said that the time bad come when the court, on tection--to ber own character, and her responsibility to those principles only, migbt so consider the Indians in the opinion of mankind, to make that effort to arrest this New York. It was not a question involving strict privciples course of violence and waste of human life. If the act can of municipal lav merely. The court considered that such be sustained, it is undoubtedly desirable that it should be was, iu fact, their condition. But the case is reversed, and But this is not the first occasion on which I have expressed the law of the State is settled to this day as the court of my own opinion that it left the whole matter exactly where errors left it. The Chief Justice, however, nowhere de- it found it. It has once been my professional duty to est pied the original native right of the Indians to sovereignty. mine tbat question in its bearing upon another case. The That was expressly disclaimed. He 'asserted do rights of sovereignty of the Senecas is yet uuimpeached, if it should 'conquest over them or their lands. He said nothing of dis- be found that they were not subject to the jurisdiction of the regarding Indian pretensions to their lands ; or that any of State when this act was passed. That question yet remainsto the colonies or States had ever maintained that they bad no be tried. However benevolent the intentions of the Legis rights of sovereignty or soil. There is nothing of this, or lature may have been, yet, if it should be found that the any thing that countenances it, in the opinion of the court. consent of the Seneca nation to the exercise of this power Such doctrines as there would have startled the moral sense was necessary, the courts will pause before they assume of the State, and contradicted her whole history. And jurisdiction under it. I am not aware that the act baserer how far, sir, after all
, could the committee have pressed been executed. It was shortly after its passage, and in the this opinion into their service, if it had never been over. first case which brought up the question as to the condiruled It referred only to the condition of the Indians in tion of the Indians in another form that the Supreme New York. It beither speaks vor treats of any others, vor Court, relying on the ivferences to be drawn from that does it profess to suggest any principles which reach the law, decided that they were citizens, and subject, like all
May 15, 1830.)
Removal of the Indians.
(H. OF R.
others, to the laws of the State. But, since the reversal of winter, to the nearest thieket, for refuge from the tomathis case, the opinion of Chancellor Kent is considered to be bawk l-when they looked back upon the conflagration the law of the State. How much aid, then, to the duetrines wbichlighted up the pathless forest around them of the report of the Committee on Indian Affairs can be when they returned to the burning ruins, and saw the drawn from the course of judicial decisions in New York, door-posts of their dwellings sprinkled with the blood of even since the passage of the act of 1822, I leave to you their children, and the remnant of their families swept to determine, aud will dismiss this part of the subject with into captivity or wben tbey gathered from the scorchthe remark, that, if by the public or conventional law of ing ashes the calcined relics of all they had beld dear on that State, or the Union, whether arising from treaties, or earth! If we cannot justify that extremity of retaliatiou fouoded on any political principles of our system, the Se- to which human nature, in such circumstances, could be Deca nation held their sovereiguty in 1822, that act bas pot, tempted, let us be just enough to their memory to for and could not rightfully take it away.
bear to reproach the errors of their social affections. I shall cheerfully concede that we are to look to the acts Why, sir, do we not go back, and bring up for our exof the colonies, and especially of the States and the Federal ample, at this day, other laws of our own, or other coun .
Government, to determine the rights of soil and sovereign tries, more gravely enacted, and quite as rigorously eui ty claimed by the Indian nations, but I shall be compelled forced 1 We migbt
, perhaps, be able to justify the prac to detaid you longer than I should have done, had the Com- tice of making slaves of the Indians ; or, if we should be mittee on Indian Affairs claimed with less confidence, and inclined to go back still further, we could justify the putgiven us better proof that the fundamental principle that ting of prisoners of war to death. It is not balf a century the ladians had no right to either, had never been abandon- since the Africau slave trade was generally condemned by ed, either expressly or by implication. Whatever may the laws of christian Governments. I should be very sorry have been the public law before the revolution, it would to believe that the Government was driven to justify the
be quite sufficient to settle this question conclusively in passage of this bill under any examples like these, or favor of the Indian nations, by showing what the acts of that we should be forced to confess that we and all the the old Congress, the States, and the Federal Government world have made no advance, for two centuries, io poli have been, from the declaration of independence to the tical science, or the morality of the code of public law by present time. But, as we find upon our tables a collection which enlightened pations are willing to be governed. ! of colonial laws, some of which were passed nearly two hope that, during that time, our society bas gone forward centuries ago, I will trouble you with some reflections tbat and not backward. We boast much of our improvement have occurred to me on this mode of disposing of the diffi- in other things, and wby should we not be willing to adculties thrown in the way of gentlemen by the history of mit it in this I protest, at least, against going back to later times. I cannot agree ibat we are to go back quite the time when the fires of Sinithfield were lighted up, 80 far to ascertain the public or conventional law of the aud I cannot consent to take the expulsion of tbe French Federal Government, or to look beyoud the revolution for from Acadia as a fit model to illustrate our duties to the the political law of the States. This collection of laws Cherokees. We had better come down to later times-certaioly contains some, chiefly of an early dute, which may after christianity had shed its pure light more clearly now appear to be somewbat whimsical ; and there is no upon the world-after the colonial Governments had bedoubt that many could be found, wbicb would show less come better established-the code of public law better regard to Indian rights, and perbaps to the common claims considered, and the duties of nations better 'understood of humanity, tbau some of these. There may be much to and defined. It will be quite as well for us to see wbat disapprove, and much to lament, in our early history. I our own Govəruments have done in the last fifty years, and cannot say that I have found much instruction from the ex- ask ourselves if we can honorably repudiate this portion tracts laid before us of these early laws of the colonists, of our history. We may, perbaps, find ourselves so hem. and I certainly feel no gratification that they have been med in on all sides, that this question is not to be debated rescued from oblivion, and placed among the documents at this day. If it sbould turn out to be so, it will profit us of this House. I am sorry to see them here. It would very little to know that, in a winter's seareb among the not, however, be difficult to account for the origin of archives of one of our bistorical societies, we have been : them, without attributing them to a spirit so unfavorable able to fiud a single treatise, written a century ago, to to the claims of the pative inhabitauts of this continent, prove that the Indians never bad any rights at all on this as the Committee on Indian Affairs seem to bave assumed. I continent. I have looked into that work of the Rev. It would be rather remarkable if we could show that In- John Bulkley, from wbich the gentleman from Tennessee dian rights were always held in high respect, or that In- read us an extract ; and it is very true that it makes out dian treaties were always strictly observed. We must the whole case. The learned author zealously maintains make great allowances for the early colonists. They were that the Indians were in a state of nature ; that they had settled here at a great distance from Europe. They were no homes, and no Governments, and, consequently, no lulle regarded, and altogether unprotected, by the mo- more right to the soil or sovereignty, than the auimals ther country. Their vicinity to these fierce and warlike which they followed in the chase. This is the substance nations often produced dangerous collisions with them. of bis argument; and be undoubtedly convinced himself A state of exasperation sprung up, wbich led to merciless of the truth of bis hypothesis. But to prove that agaiust Wara and bitter and implacable resentments. The French our treaties, is to prove nothing, uuless it be shown that were on the other side of the lodians, and sometimes ex- we are in a state of nature, too; and that men in a state of cited them even to the extirpation of the English colo- nature are released from the moral law of nature. It pits. If we consider what the state of society was, and would be much easier to get rid of our treaty obligations, bow strongly the principle of self-preservation is implant- by assuming, at once, that. christian nations were not ed in the human heart, we should rather wonder that the bound to keep their faith with infidels; and plentiful casuCommittee on Indian Affairs bad not been able to fiod istry can be found for that, too. This matter is not to be much more in our early history to sustain their positions disposed of in that way ; nor will it be hereafter
. It is too Was it to be expected that our fathers were to be more late for us to deby our claims to be considered a civilized then men in the critical and afflicting situatioue in which people ; that we are willing to acknowledge the public we know, from history, they were often placed I Would and social law of the human family, and to be bouud by you look for calm philosophy in men whose families were that code of universal morality which is confessed by awakened from their pillowa, at midnight, by the yell of every Government which feels it to be honorable to stand the war-whoop when they fled naked, in the depth or within the pale of christiau pations. It is uot a trifling
H. OF R.)
Removal of the Indians.
(MAY 15, 1830
thing for us to start any principles, at this day, on which ever faith or place they are educated, might yield obe we may claim to absolve ourselves from the obligation of dience unto him. He bath subjected the whole world to that faith which we have pledged in all our Indian treaties. bis jurisdiction, and commanded him to establish bis resiThe question is too solemnly settled. If it was now an dence at Rome, as the most proper place for the govert original question, and a mere speculative inquiry, we might ment of the world. He likewise promised and gave him treat it as a theme for the exercitation of ingenuity with power to establish bis authority in every other part of the a better grace, and shelter ourselves from the imputations world, and to judge and guvern all christians, Moore which may follow, under some more plausible apology. Jews, Gentiles, and all other people, of whatever see But we cannot approach our Indian treaties on any side, or faith they may be. To him is given the pame of Pope, without finding them secured by sanctions which cannot which signifies admirable, great father, and guardian, be safely be despised.
cause be in the father and governor of all men," &e. - I fully admit
, that, shortly after the discovery of America, “One of these pontiffs, ag lord of the world, hath made the principle became established, by European nations, a grant of these islands and of the terra firma of the ocean that they held their dominions here, as among themselves, sea to the Catholic King of Castile, Don Ferdinand and by the right of discovery; and that this doctrine must be i Donna Isabella, of glorious memory, and their successUR, considered as settled at this day, let its origin have been our sovereigns, with all they contain, as is more fully ex what it may. We should hold a maxim of such long standing pressed in certain deeds passed upon that occasion, which in the greatest respect. Some inconveniences may have you may see, if you desire it," &c. He then requires followed from uncertainties in the bistory of the early dis-them to acknowledge the Pope and the King as the lord coverers, and the difficulty of its application to the claims of " these islands ;" to embrace their religion, and submit of nations, as the population advanced into the interior. to his Government, and concludes thus : " But if you will But, from the very nature of the subject, any rule would not comply, or maliciously refuse to obey my injunctions, probably have led to some collisions. This may bave then, with the help of God, I will enter your country by been considered the best; and almost any rule was pre- force. I will carry on war against you with the utmost vioferable to none. It was clearly better for England, and, lence. I will subject you to the yoke of obedience to the probably, for France, too, to establish this rule, thao to church and the King. I will take your wives and child submit the question of title to the decision of the Pope, dren, and will make them slaves, and sell and dispose of who claimed all undiscovered lands as his spiritual patri- them according to his Majesty's pleasure. I will seize mony, and parcelled out bis unknown doininions on maps your goods, and do you all the mischief in my power, a wbich furnished bim nothing but degrees of longitude to rebellious subjects who will not acknowledge or submit define the extent of his eartbly donations. We must con- to their lawful sovereign. And I protest that all the blood sider, therefore, that this question of priority in right is shed and calamities which sball follow are to be imputed to be settled by priority of discovery. Occupation does to you, and not to his Majesty, or to me, or to the gentle not seem to bave been, at first, considered as strictly essen men who serve under me. And as I have now made this tial, though it was generally taken symbolically. It is declaration and requisition unto you, I require the notary probable, too, that this rule bad no reference originally to bere present to grant me a certificate of this, subscribed in any question growing out of the title of the natives. The proper form." So much for the Spanish title. morality of such an application of it would have more se The state of feeling in England, too, was favorable to riously inerited the sarcasm of one of our poets, who has the same code of public law for America. Rymer bas said,
given us at large the commission of Henry VII to the "The time once was here, to the world be it known, Cabots, from which I have taken an extract. This king “When all a roan saild by or saw was his own."
was a near family connexion of Ferdinand of Spain. The As the spirit of discovery advanced, the claims of the na- tenor of this coinmission is to sail with the King's Fet tive occupants, who might be found bere, presevted apsels, “ ad inveniendum, discooperiendum, et investiganderin other question. The voyages of Columbus had showu it to quascunque insulas patrias, regiones sive provincias gentils be probable that every part of the new world was peo um et infidelium, in quacunque parte mundi positas, qua pled. It was necessary to find some semblance of prin- christianis omnibus ante hæc tempora fuerunt incognita." ciple to dispose of their title. In an age which was over. They are then commanded to take possession of their disshadowed with superstition, and when the human mind coveries. The Latin is as barbarous as the doetrine. No was darkened by bigotry, it was not fouud difficult to si- translation could do it full justice. It is not improbable that lence conscience, and even enlist the religious feelings of this paper was the work of Empson and Dudley, who mankind in favor of the schemes of avarice and ambition. were the confidential advisers of Henry VII. Their ehsThey were, therefore, cloaked uuder the garb of religion. racters are well known to all who have looked into any Ojeda's proclamation will show us the nature of the claims history of that period. The kingdom is said to have never of Spain to the soil and sovereignty of South America been in a more disreputable condition than it was at that against the natives.
time. No man was safe; and this reign is said to have 1, Alonzo de Ojeda, servant of the most high and pow- beep chiefly distinguished by its rapacity and meandex. erful kings of Castile and Leon, the conquerors of barba- The successor of this king rewarded the crimes of Emp rous nations, their messenger and captain, notify to you, son and Dudley by a bill of attainder. and declare in as ample form as I am capable, that God James I. made some improvements upon these examples our Lord, who is one and eternal, created ibe heavens and of his predecessors. A king who beld bis notions of prethe earth, and one man and one woman, of whom you and rogative at bome, was not apt to respect the rights of those we, and all the men who have been, or sball be, in the abroad very highly. He commissioned Richard Penkerel world, are descended. But, as it has come to pass, through to sail on å voyage of discovery, and took care to make the number of generations, during more than four thousand“ assurance doubly sure to the lands of the natives of years, that they have been dispersed into different parts of America. He prescribed in Penkevel's commission the the world, and are divided into various kingdoms and pro- tenure by which the lands were to be beld, before the vinces, because one country was not able to contain them, voyage was even commenced, declaring that they should nor could they bave found in one the means of subsistence be held" of Us, as parcel of our manor of East Greet and preservation ; therefore, God our Lord gave the wich in Kent, in soccage and not in capite." It was on a charge of all those people to one man, nained St. Peter, notion derived from some commission or charter of that whom he constituted lord and head of the human race; sort, that the right of Parliameut to tax America was mainthat all men, in whatever place they are born, or in what-tuined about the time of our revolution, on the ground
MAY 15, 1830.]
(H. OF R. C
that we were represented in the House of Commons as, has since so bighly improved the moral law of nations. * parcel of the county of Kent. Now, sir, it is useless for The spirit of avarice was excited, and the thirst of domi
gentlemen to puzzle themselves with learned theses and vion was tempted, by the developments of the resources
ingenious disquisitions, to show that the European nations of the new world. Grauts and charters followed, and 1 would have been justified in expelling the natives from were often dispensed as rewards to favorites. But, sir,
their lands, on the ground that they were in a state of na- whatever may have been the theories on which the Goin ture, and that man in a state of nature has no right to any vernment at home asserted its supremacy, I deny that our a thing which he bolds-Dot even to his life. King Henry, English ancestors who first colonized these siates, ever
James, Ferdinand, and the Pope, set up do guch doctrines countenanced that disregard of Indian rights, or carried themselves. They doubtless asserted the best which they into practice that system
of injustice to the native inbabitcould find, and ought to have the privilege of being beard ants, which has been asserted in the report of the Com. for themselves, and justifying themselves upon their own mittee on Indian Affairs. On the settlement of the counprinciples.. We may search as closely as we may into the try, one of two courses was to be pursued to deny altohistory of the claims they set up, and shall find at last that gether the claims of the Indian occupants for any purpose, they were defended solely on the ground that these were and to dispossess them by violence, under any plausible or beretic and infidel countries, and that the claims of here- convenient pretext, or to treat them as holding a qualified tics and infidels to the earth were entitled to no regard in right in the soil, and extinguish their title honestly by purpreference to Catholic dominion. But as the age of su- chase. We have already seen in the proclamation of Ojeperstition and bigotry passed away—as prerogative be- da, the system pursued by Spain. The natives were treatcame weakened, and popish supremacy fell into disrepute ed as fit for spoil only. The history of Spanish America 0as the minds of men became enlarged, and the public is the most disgraceful tissue of injustice, cruelty, and perlaw improved, better priociples were established. Before fidious villany, which stains the annals of christendom; the beginning of the last century, moral and political sci- and Spain has suffered for her crimes the retributive' jusence had become too far emancipated from the supersti. tice of Providence. But, to the honor of our ancestors, tion, and intolerauce of the times of Alexander VI, as well history bas given us no North American andals like these. as the Tudors and Stuarts, to sanctify any longer the vio- They held the doctrine of discovery so far as to protect lences which had been committed in the name of religion the chartered rights of the colonies against the encroachand prerogative. Grotius had long before given the true ments of others, but they never sanctioned any system foundation of all original title.“ Primus acquirendi mo which left the Indian nations unprotected against themdus est occupatio eorum qui nullius sunt.” We have the selves, and fit subjects for lawless plunder. They were right to take that wbich others have not already appropri- men who acted up to their profession before the world. ated to themselves, but we have no right to take away our The honorable gentleman from Tennessee, ip asking where neighbor's property. This was the rule laid dowo by that we should look for the monuments of William Penn, digreat civilian and christian moralist. Then it came to be rected us to the noble institutions and enviable prosperity beld by some that Indian occupation was do occupation of Pennsylvania. This is all very just to the name of for any purpose-that it was the state of nature, without Peon, but it falls short of full justice to bis memory. I the security of natural law. Some were so very liberal as can tell bim where he can find another monument to the to admit that the lodians were men, but held that they fame of that excellent man. Vattal bas perpetuated bis roved over the earth as vagrants and outcasts of the humau bame to all ages, and in all nations, in that work in which family, with no more title even to what they actually culti- be bas commended to all mankind the invariable respect vated, than the brutes that fled before them, or the winds in which William Peon and the puritans of New Englaud which passed over the forest, and that they were fair sub- beld the right of the native inbabitants of America to their jects for force or fraud for all who might find it to be their native country. It is very true that, in the colonies, the interest to ensoare or hunt them down. There were John Crown was considered as the only legitimate source of title Bulkleys before 1734, who held to this doctrine as stoutly for its own subjects, and in most of them the lands were as Johu Bulkley of Colchester. Bat I doubt if any other generally beld under patents from the crown, or the colotreatise like this can be found in the whole history of New Dial Governments. This was early established, and conEngland. Why these people were, nbove all others, to tinues to be maintained to this day. The discoveries bad be excluded from the social law of mankind, was not as been made under commissions from the Crown, and posclosely inquired into as might have been. It was true session was taken in its name. As between the King and that their kings and sachems bad few or no prerogatives. bis subjects, the lands were treated as the domain of the They were generally governed by councils assembled Crown, and Indian purchases were not admitted against from their whole nation. But if the head men and war- the grants of the King or his title. He was considered, in riors proved to be sometimes refractory, the kings had no theory, in the light of an original fædal proprietor of the power to send them to Tower-bill or Tyburn. They light- country. It was, therefore, said, that what otherwise ed up no fires for heretics, and never seat their own pro- might have been called at the bar of the courts the seisin phets to the stake-they roasted their enemies only. They of the Indian nations, was nothing more against the Crown were ferocious and merciless in war, but they had no St. than å naked occupancy. By the original title of the coloBartholomew days. They held large tracts of uncultivated nists, under their charters, they held in fact under the country, but they had no laws of the forests—it wás King, as the lord paramount of the realm. We hold this neither death nor transportatiou for a starving man to take doctrine ourselves, so far as it applies to our Governments ; a deer; and it is probable they never heard a discussion on but we claim no supremacy over the Indian right, even in the morality of spring-guns. They believed in witchcraft
, theory, because they are to be treated as in a state of naas well as some others of their fellow-men--and in that ture, and without governments of their own, which we they came somewhat nearer to a certaio king, who sat in bave never acknowledged; or as heretics and infidels
. lpbis closet with his treatise on demonology open before bim, stances may doubtless be found in our history, (and the and conveyed away their country by parcbinent and green committee have been able to collect a few,) in which there wax, before he knew where it was to be found. We can- was occasionally collision between some of the colonists not deny that the European Governments originally held and the Indian nations on the point of title. It is probable the rights of the Indian nations in very little regard. that, in some few cases, injustice was done ; but the pracThere were great temptations to treat them lightly, and tice of the colonists settled down at last in favor of the they were not looked upon with that deference to the sanctity of the Indian title to their lande. 6 ounder principles of justice, and that humanity which The committee have suggested that we should not give
H. OF R.)
Removal of the Indians.
(MAY 15, 1836.
much weight to "the stately forms which Indian treaties chase from the lodian nations. This system, sir, ru have assumed, nor to the terms often employed in them,” conscientious in itself, and founded in good morals. We but that we should rather consider them as “ mere names" may here stand up boldly, like honest men, before ! and “ forms of intercourse.” If treating these Indian na. mankind. I am not willing to blot out these fairest pager tions, as proprietors of a qualified interest in the soil-48 of our bistory. I will not consent that these proud monei competent to enter into treaties--to coutract alliances--to ments of our country's hộpor shall be defaced. I would make war and peace-to stipulate ou points involving pot darken the living light of that glory which these 1 and often qualifying the sovereignty of both parties, and lustrations of the justice of our ancestors bave spread of possessed generally of political attributes unknown to in every page of their history, for all the Indian lands that dividuals, and altogether absurd in their application to avarice ever dreamt of, and all the empire wbich ambition subjects, is nothing more than " mere names" and "state- ever coveted. ly forms," then this long practice of the Crown, the Colo The administration appears to bave conceded to Geor nies, the States, and the Federal Government, indoed, gia the right of sovereignty and soil wbich she claimis, in proves nothing. Words no longer mean what words im- the report of 1827, over the Cherokees and their lands, port, and things are not what they are. But these treaties under the impression that such was the operation of the have been looked upon as something quite substantial, iu treaty of 1783. The Secretary of War has placed it a the time of them. Things as firmly settled as these, are that ground, and assumed, in that respect, the priociples not to be easily moved. This most honorable portion of of the Georgia report. We have never considered the our bistory is not to be obliterated by a dash of the pen. treaty as any thing more than the acknowledgment of our From a period not long anterior to the revolution in Eng- independence, and we took the rights of the Crown by land, there are numerous Indian treaties made by the accession. The King admitted that be treated with us as agents of the Crown, as well as the Colopies. These were a power already independent. He granted us nothing of doubtless made with the full approbation, and in wady in our sovereignty. He merely relinquished, for bimself and stances under instructions or advice from the Crown offi- bis successors, bis claim to the government, propriets, cers. They have been acted upon and acknowledged, in and territorial rights over the country. We do not claim a way that puts all question as to their obligation at rest. these from his gift
. The treaty took no such form. We The Crown and the Colonies found it to be their interest became independent, in fact, in 1776, and our Dational ai to take that course; the motives which led to it were va- pacity came into existence at that time. We were thea rious, and are quite obvious, even to a careless reader of at liberty, as an independent power, to adopt any policy or our bistory. As long ago as 1684, we find a " definitive assume any principles we believed to be just in regard to treaty" made at Albany, between Lord Effingham, then the Indian nations. It is too late to inquire wbether we Governor of Virginia, and Colonel Dongan, of New York, might not bave beguo differently. We must be bound with the Five Nations. One of the chiefs said to them on now by the system which we in fact adopted, and our itthat occasion, that “this treaty, had spread so far in the quiry should be to know to what principles of public lay earth, that its roots would reach through the whole land; we are pledged before the world, and in good faith, to and if the French should tread upon the soil onywhere, abide by in our conduct towards the Indian nations. What the Indian nations would immediately feel it.”. They doctrines, thed, have been assumed-ackpowledged —87kept this treaty faithfully, and the Colonies owed their se-firmed---established, and acted upon for almost half a cer curity, for many years to it. Shortly before our revolu- tury on our part, and trusted to by those we have dealt tion, the principle may be considered to have been so far with? Before you made the treaty of 1783, you had se settled, that these nations might well claim to be iovested knowledged che qualified sovereignty of some of these pswith the capacity to contract in that way, as qualified so- tions. In 1776, we guarantied to the Delaware patien vereigoties. The doctrines beld in the time of Henry "all their territorial rights, in the fullest ayd most ample VJI and the Stuarts, were completely changed before mapper, as it had been bounded by former treaties." The the declaration of independence. On the 8th of April, treaty states that the article was inserted to obriate the 1772, General Gage issued at New York; “ by order of false suggestion which our enemies bad, by every artife the King," a proclamation, fully recognising the obliga- in their power, inculcated upon all the Indians, that the tions of the Crown under its treaties with the Indian pa- United States intended to expirate them, and take posses tions
. I do not mean, sir, to be understood to say that sion of their country. In the treaty of 1804 they were sethis acknowledgment of qualified sovereignty would have knowledged to be the original proprietors, and yet been admitted by the British Government to the full ex- then admitted them to be the "rightful owners" of the tept that we have carried it since. We found it so far lands there referred to. An arrangement was provided, settled at the period of our independence, that we open in some of your treaties, for allowing the Delawares and ly adopted it as the public law for ourselves. We have Cherokees deputies to the old Congress. I could refe ever since placed our relations with the Indians on that you to pumerous treaties, before and since the treaty
of footing, and they are not to be disturbed pow on any fan- 1783, which conclusively repel the notion that the Indians ciful bypothesis. As to their right to the soil, however, were transferred to us as serfs of the Crown. It would that was long before solemply settled in practice, and be an unpardonable waste of time to examine them, a has remained so for a period too long to be now ques- fistieth part of them. They include almost every Indian tioned. New England is belt under fair and honest pur. nation within the States. The old Congress acted througtchase from the natives. A very small part of it was ever out on the principles which I have stated. The constitaclaimed by actual conquest. Pennsylvania god New York Lion bas put to rest a question which arose out of the poper were acquired in the same way. Mr. Jefferson says, io of Congress under the confederation, and shows bor his notes, speaking for Virginia, " That the lands of this largely it was intended to vest the management of the Iscountry were taken from them by conquest, o pot 80 dian affairs in the new government. The articles of cat general a truth as is supposed. I find in our bistoriąds federation had narrowed the power of "regulating trade and records, repeated proofs of purchase, which cover and managing all affairs with the Indians," by contining it a considerable part of the lower country, and many more to such as were not members of any of the States, and prewould doubtless be found on further search. The upper viding that the legislative right of any State within its own country we know has been acquired allogether by pur- limits should not be infringed or violated. The constitu ebases, made in the most unexceptionable form." There tion omitted these restrictions. Mr. Madison, in the is not a foot of land Dow held by Georgia, for which we Federalist
, speaking on this point, says: cannot produce, from authentic history, her title by pur " The regulation of commerce with the Indian tribes is