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pon assumptions for which I discover no founda
States had engaged to extinguish the Indian titles for her.
that she has hitherto forborne ouly because the United
says “it is understood,” I say that it is not understood,
and that it cannot be understood, from the public acts of the State. Is there any man on this floor entitled to speak 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 lit. tle satisfied with this Executive as she was with the last, if he protects the Indians on any terms in the occupancy 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 then to remove. Such will be its effect. Upon this subject, hear the commissioners who were sent last year to negotiate with the Indians for their removal: General Carroll to the Secretary of War, describing the difficulties 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 of the 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 diffi. culty in removing them west of the Mississippi." Ithink 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 compel them to seek a new home beyond the reach of the avidity and oppression of the white man, if such a spot remains to them of all their once vast domains. Yet we are told that this removal is to be purely voluntary; and gentlemen point us to the bill, and say, there is no compulsion there. Ro, 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 affected by this bill, and who have invoked our protec tion; the obligations 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 toward them. In this question are involved the rights of Georgia, as a member .# the Union, and the powers of the General Government over Indian tribes resident within the bor. ders of a State. These topics have already been so fully and ably discussed elsewhere, and so eloquently and elaborately debated here by the honorable member from New York, [Mr. Stomas] that I am sensible very little 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 whom this bill is designed 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 laced themselves under the protection of the United §. and “of no other sovereign whatever." After the adoption of the federal constitution in 1791, the trea
ty 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 session of territory was made to he United States; and the United States, by the seventh article, “solemnly guarantied to the Cherokee nation all their lands not hereby ceded. Various other trea. ties have been made since 3. time, by which a large territory has been acquired, and renewed guaranties given. These treaties have been negotiated by every administration, except the last—have been confirmed by every Senate, and approved and sanctioned by every House of Representatives in the appropriations they have inade to carry them into effect. By these treaties we have recognized 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, aud prohibited them from treating with any “individual State,” or placing them. selves “under any other sovereign whatever.” We have ad. mitted their title to the lands in their occupaney—have paid them for the cessions they have made, and solemnly gua. rantied to them “their lands." Yes, sir, “their * which had not been ceded. All these rights they claim of the 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, subject to its laws. The party with whom we contracted is annihilated. This is the #. 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. Of these 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 entered into ? Our stipulation with the Indians is, that they are a distinct community, and have the power of holding their own land. This guaranty is about to be violated, and we are called upon to sit still and see it violated. Sir, I could go further. The guaranty in the treaty of Holston is a guaranty to the Indians as a nation. No individual ownership is therein recognised ; and, when indi. viduals leave the tracts on which they have resided, those tracts revert, not to the United States, nor to the Government, nor to anybody else but to the nation as a nation. But this bill contemplates a separate negotiation with individuals, and 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 ut: terly annihilated the very party with whom we stipulated. It seems to me the gentlemen get into a dilemma–the
3round they take is, that Georgia has a right to abolish he tribe, and to resolve it into its elements—as individuals, itizens 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 1 Why, sir, that tribe is abolished—there is no Cherokee nation. With whom, then, is the President to make a treaty With the Indians convened on council Sir, they cannot convene—the laws of Geor";ia forbid it, and subject them to imprisonment and pun"shment if they do. They dare not assemble to treat, and *Fet the President is to hold a treaty with them If the o:entleman'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 had occasion to remark, *hat the construction which the President places upon *hese treaty stipulations is not “adverse to the sovereignty *f Georgia.” hile he admits the Indians to have a just - ight to the oceupancy of the lands, he denies to them the ight of jurisdiction and government over their territory. *3ir, have we not received those tribes under our protec*ion, and refused to permit them to become subject “to ony other sovereign whatever ?” Is this not “adverse to he sovereignty of Georgia?" The idea of separating the urisdiction of a nation from the territory which it owns as * nation, is a modern discovery. And I yield so far to the rgument of gentlemen on the other side, as to admit that *he discoverer, whoever he may be, is entitled to the full credit and benefit of the discovery. Such was not the ooctrine of Georgia in 1825. In the discussions which then took so between her Chief Magistrate (Governor Troup) and the Seeretary of War, in relation to the treaty of the ondian Springs, the former said, “soil and jurisdiction go togethef; and if we have not the right of both at this rooment, we can never have either by better title. If the obsolute property and the absolute jurisdiction have not passed to us, when are they to come Will you make a ormal concession of the latter? When and how ! If the orisdiction be separated from the property, show the rervation which separates it: it is impossible.” The argument i. was, that jurisdiction was acquired sy treaty, as well as soil. The argument now is, that ju::sdiction always belonged to the State, and that compact o, not necessary to confer it. The Governor inquired when and how you could obtain jurisdiction, if separated om the property, and declared that it was impossible. oir, the doctrines then relied upon for the promotion of , le interests of Georgia, are in direct collision with the octrines now advocated for her benefit. Will she prerve consistencey, or must new principles of law and right e discovered at every new emergency The honorable airman, [Mr. BELL] in his report upon this subject, says, The fundamental principle, that the Indians had no ghts, by virtue of their ancient possessions, either of soil of sovereignty, has never been abandoned, either expressly or by implication.” Sir, it might be answer enough to oy that this principle has never been asserted, and to call pon gentlemen to prove its existence by other means aan the absence of an abandonment of it. But, as the entleman has chosen to state the proposition in this form, will endeavor to show that it has been expressly abanned, and by some of the States which are most interoted in the passage of this bill. By the treaty of the dian Springs, in 1825, with the Creek nation, all their ond in Georgia, and a considerable portion of that in Alaima, was ceded to the United States. This treaty was nulled in 1826, for gross fraud and corruption, and a new eaty formed, ceding the lands in Georgia, but not those * Asabama. These states protested against rescinding 'e first treaty, because, as was contended, Georgia had oquired vested rights under it; the property in the soil, o Vol. VI.-131.
by virtue of the compact of 1802. The lands in Alabama upon the extinguishment of the Indian title, belonged to the United States, while those in Georgia, agreeably to our engagements in the compact, belonged to that State. These treaties 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 dissatisfaction with the treaty; it was Alabama that was injured by the loss of some millions of acres, which she had acquired under the treaty of 1825, and lost under that of 1826." “She had lost the right of jurisdiction over a considerable extent of territory"—lest 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 o: 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 argument 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 of this doctrine still. In the session of 1826, a Senator from Mississippi [Mr. Reed] moved a resolution of inquiry into the expediency. of authorizing process, both civil and criminal, to be servi ed upon persons, citizens of the States, who had fled to the Indian territory for protection. The resolution proposed no other action than upon citizens of the United States. In explanation of his views, Mr. REED 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 aud 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 them. selves 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 Indians 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 Indian territory—and he would wish to bring to the consideration of the legislative 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 append. ages—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 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 subjeet 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 think it sufficiently appears from the extracts I have read, that the State | Mississippi, so deeply interested in this |. 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 extent, 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 eleventh 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 com: mitted within 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 deemed within the jurisdiction of the State This is, in truth, a guaranty on our part that we will not invade their jurisdiction. And we are now to be told that we have given no guaranty “adverse to the sovereignty of Georgia f" Sir, is it becoming a great and magnanimous nation to fritter away its obligations—to search for nice distinctions and refined 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 jurisdic tion is fully conceded 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 York [Mr. Srokas] has done it with so much ability. I shall, however, notice hereafter some of the arguments which have been adduced to sustain the right which Georgia sets up to these lands. * The gentleman who last addressed the committee, [Mr. Fosten} seems to be aware that the obligations and gua. ranties contained in our treaties do, in truth, conflict with the pretensions of Georgia; and he assumes the position that they are, therefore, unconstitutional 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 obligations to her which we must first discharge. Now, sir, it comes with an exceeding ill grace from us, when we are called ". to perform our promises, to return 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 out 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 Cherokees? If we refuse to be bound by the guaranty, may they not refuse to be bound by the cession ? The
oue was the consideration for the other. Shall we restore them to their original condition ? Shall we re-eede the territory : Gentlemen have foreseen the diffieulty, and they say, as we cannot 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, more farther off—leave us—cross the Mississippi—go to the Rocky Mountains. This is our will, and you must obes. Sir, it requires two parties to make a contract, and the indians do not agree to this mode of compensation. The 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 neighbor. hood"—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 Gentlemen tell us that we are thereby erecting a State within the limits of another State, against the consent of the latter, which is expressly interdicted in the constitu. tion. Sir, I deny the fact. I deny that, by anything 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 political existence. The treaty merely recognised 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 member of this ecofederacy—a State having all the prerogatives, and bound by all the obligations, which that instrument contained— that shall have representatives on this floor and in the Senate, and should have a voice in the election of Presi. dent. 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 the Union when we at knowledge the Cherokees as an independent tribes Do we restrict them as the constitution restricts the States of this Union ? Do we confer powers and privileges which that instrument confers ? e do not. When I beard gentlemen urge this objection, and talk about erecting a State within the limits 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 constitution; 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 Government, and are taking rapid strides to power. The position is o 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, in a written form. This may be improving their Gover ment, but it is not creating it, nor assuming any new power. They disclaim such an idea. But it is said that this recognition is inconsistent with the sovereignty and jurisdiction of Georgia. Do not gentlemen perceive that this argument, assumes the whole question The very uestion is, whether the sovereignty and jurisdiction at eorgia does or does not extend over the Cherokees They assume the very question we are debating. They say that these lands lay within her chartered limits, an: that therefore she has jurisdiction over them as a matter of course. “Chartered limits.” “ Chartered limits." Sir one would think that there was some magic, some charn in these words, which conferred immense powers, so grea as to subvert all Indian rights whatever. But what ar. chartered limits Certain lines described in charters de rived from Great Britain. Gentlemen argue that the sove reignty of Geórgia is derived from her chartered limits Sovereignty follows them, as a thing of course. This
- brings us to a further question. What right had the a Crown of Great Britain to grant these chartered limits, rand to extend them round the Indian possessions Did the *Indians consent No, sir. I shall be told that it was an eact of sovereignty; and this brings us back again to the oformer question, whence comes your sovereignty And thus we are reasoning in a circle. o, The State has jurisdiction and sovereignty because it has received chartered limits, and it has chartered limits from its rights of sovereignty. Each of these is the cause, and each the effect of the other. To such reasoning as his I have a short auswer. I tell gentlemen that chartered limits are one thing, and jurisdictional limits are another. I deny that the two are co-extensive. Chartered limits convey no other right than as against those who grant the eharter-no other power than to obtain sovereignty and jurisdiction from those who possess it, and could confer it. If the gentlemen mean to #: 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 a right to plant colonies and to protect them, to drive off the hostile tribes: and we are further told that civilization has a superior claim over the savage life; that the earth was intended by Providence to be cultivated. The gentleman from Georgia [Mr. Fosren] has read the opinions of eminent men to sustain these positions. Sir, these are very fine theories, and I shall not stop to question 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 considerations, 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, eonfirmed, and guarantied by 3ompacts How have our rights as discoverers, or as oxivilized nations, been waived, defined, and limited by treaties? Surely it will not be contended that the rights of discovery or conquest, 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 honorable member from New York, o SroRRs] aud so ably expounded in the other branch of Congress, in de-bates 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 inhabitants 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 I ask whether Georgia, Alabama, or Mississippi are so densely populated that more land is wanting for their citizens. Are there not two hundred millions of Acres belonging 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 ter. ritory may then be as dense iu population as Georgia, and its inhabitants as civilized also. If that period should ever arrive, may not the Indians turn round on Georgia, and say, we are a civilized people; our country is full to overflowing, and we want some of your land to accom. modate our suffering population. Will Georgia be willing to yield to such a o ir, the period is distant, very distant, when we can
make so a right to usurp the Indian possessions on the ground of the superior 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 original right of the natives to the whole continent. Did he assert that the rights of civilization were so imperious and inexorable as to leave the Indian no spot of earth to rest upon Does he deny that the right, whatever it was originally, may be modified by compact? Does he assert the monstrous position that when civilized man 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 language used was, “that the original right of the Indian had been doubted.” None, surely, will contend that out of the rights of civilization 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 strange to me that those who so strenuously deny it should account for its undisturbed 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 shall 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 Indians 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 making peace, under any circumstances. The right of war was derived from the imminence of the 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. t 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 their dependence on the Government of the United States, had W. 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 matters with the Indians which belonged to Georgia, and that the legislative right of Georgia had been expressly reserved in the articles 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