Removal of the Indians.

lature of Pennsylvania, relative to a treaty for the purchase | naging all affairs with the Indians," which had been pro of the Indian claim to lands within the jurisdiction of that ductive of so much embarrassment under the confeder State, proceeded from a respectful attachment to the Fe- tion, being entirely struck out. Under the power to regederal Government, and a desire to guard against prejudices late commerce, it is apparent no right beyond that of es which might arise from the interference of their own par- trolling the Indian trade was granted, or intended to be ticular views with the authority of the United States: that granted, the public interest might have been deeply affected by a negotiation for such purchase, independent of, and unconnected with, the general treaty, to be holden on behalf of the United States: Resolved, That the commissioners for holding the convention with the Indians, under the act of the 15th day of October instant, give notice to the Supreme Executive of the State of Pennsylvania. of the time and place of holding such treaty, to the end that the persons to be appointed by that State, for purchasing lands within the limits thereof, at the expense of the said State, may attend for the sole purpose of making such purchase, at the time and place appointed for holding the said treaty: and the commissioners on the part of the United States are instructed to give every assistance in their power to the commissioners who may be appointed on the part of Pennsylvania, towards promoting the interest of that State, as far as the same may consist with the general interest of

MAY 19, 1830.]

Removal of the Indians.

[H. or R.

agreement has been submitted to the Senate; but, latterly, that body seems inclined to reject the construction which supposes such interference necessary.

In December, 1827, a treaty of this description with the Seneca Indians, providing for the extinguishment of their title to certain lands in New York, in favor of the parties holding the right of pre-emption, was submitted to the Senate. Upon the resolution, that the Senate advise and consent to the ratification of the treaty, it was determined in the negative: yeas, twenty-nays, twenty. The Senate then adopted a resolution, "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 are parties to that contract, but merely to disclaim the necessity of an interference by the Senate with the subject matter."*

ferred to a committee, which reported that they "be ac cepted, and the President of the United States be advised to execute and enjoin an observance of the same." The *Senate passed a resolution accordingly, "that the Presi#dent of the United States be advised to execute and enjoin an observance of the treaty concluded at Fort Harmar, on the 9th January, 1789, between Arthur St. Clair, Governor of the Western Territory, on the part of the United States, and the sachems and warriors of the Wyandots, Delawares, Ottawa, Chippewa, Pattawatima, and Sac nations." And an attested copy of the proceedings was laid before the President. The President sent a message to the Senate, urging the practice of ratifying treaties with foreign powers, and saying he "inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians; for, though such treaties being, on their part, made by their chiefs or rulers, need not require to be ratified by them, yet, being formed on our part by the agency of It might be here observed, that the commissioners who subordinate officers, it seems to be both prudent and rea- negotiated Indian treaties, were formerly designated misonable that their acts should not be binding on the nisters plenipotentiary, and were nominated to the Senate, nation until approved and ratified by the Government." like other ministers. That practice has been long abanThis message wrs referred to a committee, which re-doned, and they were now appointed solely by the Presiported "That the signature of treaties with the Indian dent. The negotiations at Ghent had been referred to uations has ever been considered as a full completion by the honorable gentleman from Massachusetts, [Mr. "thereof, and that such treaties have never been solemnly EVERETT] in the course of this discussion. ratified by either of the contracting parties, as hath been [Mr. W.] erred, there was a part of that correspondence commonly practised among the civilized nations of Europe: which did not favor the view taken by that gentleman. wherefore, the committee are of opinion that the formal In their note of the 26th December, the Americau commisratification of the treaty of Fort Harmar, &e. is not expe- sioners thus explain the policy of the United States redient or necessary; and that the resolve of the Senate, of specting the Indians: the 8th of September, 1789, respecting the said treaty, authorizes the President of the United States to enjoin a due observance thereof."

Unless he

"On this subject the undersigned have no hesitation in avowing that the United States, while intending never to acquire lands from the Indians otherwise than peaceably, and with their free consent, are fully determined in that

The Senate on the 22d September, 1789, proceeded to consider the report, postponed it, and adopted the follow-manner, progressively, and in proportion as their growing ing resolution:

Resolved, That the Senate do advise and consent that the President of the United States ratify the treaty coneluded at Fort Harmar, &c.

It does not appear what were the reasons for this change of opinion on the part of the Senate, nor does the journal exhibit the yeas and nays, or state that the resolution was adopted by two-thirds.

In 1790, a treaty having been negotiated with the Six Nations, by which the commissioner, with good intentions, but incautiously, made certain confirmations of lands granted or leased by the Indians, in the State of New York, to individuals, General Washington informed the Senate that it was unauthorized by his instructions, unsupported by the constitution, and that the transaction had been explicitly I disavowed by his orders to the Governor of New York, on the 17th August, 1790.*

The constitution, art. 1. sec. 10, first clause, interdicts the States from entering into any "treaty, alliance, or confederation."

This prohibition is absolute, unconditional, and without qualification.

population may require, to reclaim from a state of nature, and to bring into cultivation, every portion of the territory contained within their acknowledged boundaries. In thus providing for the support of millions of civilized beings, they will not violate any dictate of justice and humanity; for they will not only give to the few thousand savages scattered over that territory an ample equivalent for any right they may surrender, but will always leave them the possession of lands more than they can cultivate, and more than adequate to their subsistence, comfort, and enjoyment, by cultivation."

In considering the power to make treaties, Mr. W. said he put out of the discussion, at least for the present, the constitutional right of the United States to cede any portion of a State. Mr. Jefferson, in his correspondence with our minister in Spain, while Secretary of State, it would be seen, disavowed the right. When the British commissioners at Ghent proposed to treat on the basis of uti possidetis, the American commissioners refused, alleging that this might involve the cession of some part of our territory, and no such treaty would they subscribe.

Mr. Quincy, in the debate on the admission of Louisi

By the last clause, "No State shall enter into agree-ana into the Union, contended for limitations on the treatyment or compact with another State, or with a foreign power, without the consent of Congress."

making power. He said: "It was a monstrous proposition to assert that the treaty-making power is competent to change the fundamental relations of the constitution itself;" and added, that, in the conventions of the day, it was admitted the treaty-making power could not cut off a

The framers of the constitution, then, distinguished between treaties, alliances, and confederations, which were absolutely interdicted, and mere compacts or agreements with another State or foreign power, which were per-limb. mitted with the consent of Congress.

But a compact with a tribe of Indians is neither with a foreign power nor another State: and it is fair to infer that the phraseology was adopted for the purpose of allowing it. Such compacts have been made; and the consent of the Congress has been asked; and a commissioner on the part of the United States has attended; and the

• Executive Journal, vol. 1, p. 85.

Whether, for the purpose of restoring peace, at the end of an unsuccessful war, they might, at the expense of a single State, relinquish, by treaty, what had already been wrested from them by conquest, was an extreme case. He [Mr. W.] was unwilling to believe it ever would occur; and if it did, he was not prepared to admit the constitution.

* Senate Journal, 1897-'8, 495, 6, 7.
+ Waite's State Papers, vol. ix,p. 406--7.

H. OF R.]

Removal of the Indians.

[MAY 19, 1830

Until near the close of General Washington's administry tion, the relations between the Indians and the United States, as was well known, were those of almost unceasing hostility. The detention of the western posts, and the machinations of foreign agents among the savages, wer topics of frequent complaint.

al right. It would not be pretended, however, that we ever messages of the different Presidents of the United State had been, or should be, compelled to cede to Indians what as illustrative of the course pursued by the Governme they had conquered from us. Yet, he was greatly de- on this subject. ceived, if he did not show, conclusively, hereafter, that the United States had, at one time, usurped the power of ceding a part of the State of Georgia to a tribe of savages. How long would Pennsylvania or New York have endured such an indignity? As to lands occupied by Indians within the old states, he apprehended the question stood thus: the right of soil and jurisdiction was not in the United States; they could not grant by treaty, to the Indians, that which they had not themselves. If these rights did not exist, independent of treaties, treaties with the United States could not give them. But it appeared to him, they neither did exist independent of treaties, nor did any treaty attempt or profess to give them. No treaty explicitly guaranties the sovereignty and soil to the Indians. The title guarantied is merely the occupancy, which, so far as he knew, was not proposed to be disturbed by the bill before them.

In his first speech to Congress, January 8, 1790, he says: "There was reason to hope that the pacific measure with regard to certain hostile tribes of Indians would have relieved the inhabitants of our southern and western from tiers from their depredations. But you will perceive, from the information contained in the papers which I shall direct to be laid before you, that we ought to be prepared to afford protection to those parts of the Union, and, if necessary, to punish the aggressors." In his speech at the opening of Congress, 8th December, 1790, he inform Congress of the murders and other outrages committed by the Indians, and that, defensive operations being insdequate, he had ordered out the militia, and directed offesive operations.

The claim of the Indians to the rights of sovereignty and soil, stood, therefore, on the original ground of the law of nature and nations, to which the compacts between them and the United States had added nothing. If On the 25th October, 1791, in his speech at the com the United States had, indeed, improvidently made agree-mencement of the session, he informs Congress of the ments with the Indians, which they had no constitutional steps taken to punish the savages, and restore peace to the power to execute, the contract would not be executed, but frontier, and recommends measures in relation to trade the good faith of the United States was bound to make and intercourse with them. every compensation in their power; and this bill provided the means of doing so. The effect of usage or opinion was as strongly illustrated by this subject of Indian treaties, as by any other. What to-day is fact, to-morrow will be precedent, the next day practice, and then a contemporaneous construction of the constitution. Strictly speaking, the United States had no right to hold a treaty for the acquisition of land with the Indians within a State in which the soil or fee does not belong to the United States. The treaty is held by the State. A commissioner on the part of the United States may be appointed to attend, to see that justice is done to the Indians. This is a matter of expediency, resulting from their obligations to protect the State from war or domestic violence.

The anomalous condition of the Indian lands in Georgia has been the source of much confusion in the arguments on the rights of that State.

The right of soil and jurisdiction was in Georgia; the occupancy in the Indians. The obligation to extinguish the Indian claim to occupancy rested on the United States. The right of treating was gradually assumed by those on whom the obligation and expense of disencumbering the estate devolved.

Mr W. said he would here make an observation or two, connected with another branch of the constitutional question.

By the constitution, a basis of representation is agreed on, and "Indians not taxed" are to be excluded. He was at a loss to conceive why this provision was necessary, or how it was applicable, unless the States had a right to include and tax them.

In his speech, November 6, 1792, the President details the efforts made to restore peace, and the various depre dations and outrages of the savages. After adverting to the hostilities north of the Ohio, he proceeds; " It must add to your concern to be informed, that, beside the cor tiuuation of hostile appearances among the tribes north of the Ohio, some threatening symptoms have of late beet revived among some of those south of it. A part of the Cherokees, known by the name of Chicka wagas, inhabiting five villages on the Tennessee river, have long been in the practice of committing depredations on the neigh boring settlements.

"It was hoped that the treaty of Holston, made with the Cherokee nation in July, 1791, would have prevented a repetition of such depredations. But the event has not answered this hope. The Chickawagas, aided by some banditti of another tribe in their vicinity, bave recently perpetrated wanton and unprovoked hostilities upon the citizens of the United States in that quarter."

In the succeeding year's speech, December 3, 1798, be states the obstinacy of the savages; the liberality of the United States to them; the relief extended to them in food and clothing; the anxiety of our Government for peace, and still critical state of our relations with the Creeks and Cherokees.

On the 19th November, 1794, he refers to the military operations under General Wayne, the willingness of the Government to grant the Indians peace, and adds: “ Towards none of the Indian tribes have overtures of friendship been spared. The Creeks, in particular, are covered from encroachment by the interposition of the General Govern ment and that of Georgia."

In addition to this, the constitution guaranties to every State a "republican form of Government," and engages In his speech at the opening of Congress, 8th Decem to protect them against invasion and domestic violence. ber, 1795, he mentions the successful termination of the How is this consistent with the existence of an Indian Go-war with the northern Indians, and the trespasses alleged vernment within the heart of a State independent of her to have been committed on the southern Indians by some laws? lawless white men.

Moreover, no new State shall be formed or erected within the jurisdiction of any other State." To meet this difficulty, it is alleged the Cherokee oligarchy is not a State. Thus it seems, when they are to be considered as proper subjects for the action of the treaty-making power, they are a State; but when the inhibitions of the constitution are to be applied to them, they are not a State.

Mr. W. said, he would next refer to the speeches and

This is the only instance during the whole course of his administration, in which the Indian hostilities do not ap pear to have been entirely wanton and unprovoked.

In the same speech he suggests the propriety of taking means to supply their necessities, and the possibility ef civilizing them.

In 1796, he speaks of the measures taken to secure peace, and establish forts and trading houses.

MAY 19, 1830.]

Thus far

Removal of the Indians.

To chastise their unprovoked hostility by arms: To provide them occasionally, and in case of absolute necessity, with food and clothing;

To cultivate their good will by presents; Prevent intrusions on their hunting grounds; Provide for intercourse and commerce with them, and establish forts and trading houses; seem to have been the principal subjects of executive solicitude,

[H. of R..

In 1808, the President informs Congress that “one of the two great divisions of the Cherokee nation have now in consideration to solicit the citizenship of the United States, and to be identified with us, in laws and government, in such progressive manner as we shall think best. In the messages of President Madison, in 1809-'10 and 11, nothing material appeared in relation to this topic. In 1812, he says: "The Indian tribes, not under foreign instigations, remain at peace, and receive the civilizing attentions which have proved so beneficial to them."

In the messages of 1813 and '14, reference is made to the war with the southern Indians, aud the military services of the present Chief Magistrate.

In 1815, the President says: The Indian tribes within and bordering on the southern frontier, whom a cruel war on their part had compelled to chastise into peace, have latterly shown a restlessness, which has called for preparatory measures for suppressing it, and for protecting the commissioners engaged in carrying the terms of the peace into execution,"

During the ensuing administration, Mr. W. said he found in the speeches of the President only one reference to our Indian affairs: on the 23d of November, 1797, where he speaks of the interference of foreign agents, and their attempts to excite the savages to hostilities against the United States, and suggests the passage of a law to reach such offences. The President, then, evidently did not consider such a law as an unwarrantable interference with Indian sovereignty. Neither in the inaugural address or first message of Mr. Jefferson, is any mention made of Indian affairs. The remaining messages of the first four years of his administration refer, in general terms, to the settlement of In 1816, he says: "The Indian tribes within our limits boundaries, the cessions of lands, and the efforts of the Go- appear also disposed to remain at peace. From several of vernment to preserve peace and introduce agriculture and them, purchases have been made, particularly favorable to the arts among them. In his inaugural address, at the the wishes and security of our frontier settlements, as commencement of his second term, 4th March, 1805, he well as to the general interests of the nation. In some incomments on the condition of this people more at length: stances, the titles, though not supported by due proof, and "The aboriginal inhabitants of these countries, I have clashing those of one tribe with the claims of another regarded with the commiseration their history inspires, have been extinguished by double purchases-the beneEndowed with the faculties and the rights of men-volent policy of the United States, preferring the augbreathing an ardent love of liberty and independence-mented expense to the hazard of doing injustice, or to the and occupying a country which left them no desire but to enforcement of justice against a feeble and untutored be undisturbed-the stream of overflowing population, people, by means involving or threatening an effusion of from other regions, directed itself on these shores blood. I am happy to add that the tranquillity which has without power to divert, or habits to contend against; they have been overwhelmed by the current, or driven before it-now reduced within limits too narrow for the hunter's state, humanity enjoins us to teach them agriculture and the arts to encourage them to that industry which alone can enable them to maintain their place in existence-and to prepare them in time for that state of society which to bodily comforts adds the improvements of the mind and morals. We have, therefore, liberally furnished them with the implements of husbandry and household use; we have placed among them instructors in the arts of first necessity; and they are covered with the aegis of the law, against aggressors from among themselves.

been restored among the tribes themselves, as well as between them and our own population, will favor the resumption of the work of civilization, which had made an encouraging progress among some of the tribes; and that the facility is increasing for extending that divided and individual ownership, which exists now in movable property only, to the soil itself; and of thus establishing, in the culture and improvement of it, the true foundation for a transit from the habits of the savage to the arts and comfort of social life."

President Monroe, in his inaugural address of 1817, says: "With the Indian tribes, it is our duty to cultivate friendly relations, and to act with kindness and liberality in all our transactions. Equally proper is it to persevere in our efforts to extend to them the advantages of civilization."

In his message of December, 1817, be adverts to the purchases of land from several Indian tribes bordering ou Lake Erie, by which the Indian title, with the exception of moderate reservations, has been extinguished to the whole of the land within the limits of the State of Ohio, and to a part of that in the Michigan territory and the State of Indiana.

"But the endeavors to enlighten them on the fate which awaits their present course of life, to induce them to exercise their reason, follow its dictates, and change their pursuits with the change of circumstances, have powerful obstacles to encounter; they are combatted by the habits of their bodies, prejudice of their minds, igno rance, pride, and the influence of interested and crafty individuals among them, who feel themselves something in the present order of things, and fear to become nothing in any other. These persons inculcate a sanctimonious reverence for the customs of their ancestors; that what- "From the Cherokee tribe, a tract has been purchased ever they did, must be done through all time; that reason in the State of Georgia, and an arrangement made, by is a false guide, and to advance under its counsel in their which, in exchange for lands beyond the Mississippi, a physical, moral, or political condition, is perilous innova- great part, if not the whole of the land belonging to that tion; that their duty is to remain as their Creator made tribe eastward of that river, in the States of North Carothem, ignorance being safety, and knowledge full of lina, Georgia, and Tennessee, and in the Alabama terridanger; in short, my friends, among them are seen the actory, will soon be acquired."

tion and counteraction of good sense and bigotry. They The House will remark how far these flattering anticitoo, have their anti-philosophers, who find an interest in pations are yet from being realized.

keeping things in their present state, who dread reforma- The President continues: "The hunter state can exist tion, and exert all their faculties to maintain the ascen-only in the vast uncultivated desert. It yields to the more dancy of habit over the duty of improving our reason, dense and compact form, and greater force of a civilized and obeying its mandates," population; and of right it ought to yield, for the earth was In the messages of 1805-'6 and '7, the efforts of the given to mankind to support the greatest number of which Government to preserve peace-the acceptance of ces-it is capable; and no tribe or people have a right to withsions-the determination to promote their progress and hold from the wants of others more than is necessary for welfare, are mentioned... their own support and comfort. It is gratifying to know

that the reservations of land made by the treaties with the tribes on Lake Erie, were made with a view to individual ownership among them, and to the cultivation of the soil by all, and that an annual stipend has been pledged to supply all their own wants. It will merit the consideration of Congress, whether other provision, not stipulated by treaty, ought to be made for these tribes, and for the advancement of the liberal and humane policy of the United States towards all the tribes within our limits, and, more particularly, for their improvement in the arts of civilized

life."

In the message of 1818, speaking of foreign adventurers among the savages, the President says: "It is to the interference of some of these adventurers, in misrepresenting the claims and titles of the Indians to land, and in practis ing on their savage propensities, that the Seminole war is principally to be traced."

[MAY 19, 1830.

In the message of 1821 there is nothing of peculiar interest relative to the Indians.

In 1822, the President informs Congress of the abolition of the trading houses, in conformity with the act for that purpose. In 1823, there is nothing important on this topic. In 1824, the President informs Congress of some India hostilities on the upper Mississippi; of the preservation of pacific relations with the other tribes; and, after remarking upon the schools, pursues the general subject thus:

"The condition of the aborigines within our limits, and especially those who are within the limits of any of the States, merits likewise particular attention. Expe rience has shown, that, unless the tribes be civilized, they can never be incorporated into our system, in any form whatever. It has likewise shown, that, in the regular augmentation of our population with the extension of our On the general topic, he remarks, in the same message: settlements, their situation will become deplorable, if their "Experience has clearly demonstrated that independent extinction is not menaced. Some well digested plan, savage communities cannot long exist within the limits of which will rescue them from such calamities, is due to a civilized population. The progress of the latter has al- their rights, to the rights of humanity, and to the honer most invariably terminated in the extinction of the former, of the nation. Their civilization is indispensable to their especially of the tribes belonging to our portion of this safety, and this can be accomplished only by degrees. hemisphere, among whom loftiness of sentiment and gal- The process must commence with the infant state, through lantry in action have been conspicuous. To civilize them, whom some effect may be wrought on the parental. and even prevent their extinction, it seems to be indispen-ficulties of the most serious character present themselves sable that their independence, as communities, should to the attainment of this very desirable result, on the ter cease, and that the control of the United States over them ritory on which they now reside. To remove them from should be complete and undisputed. The bunter-state it by force, even with a view to their own security and will then be more easily abandoned, and recourse will be had to the acquisition and culture of land, and to other pursuits tending to dissolve the ties which connect them together as a savage community, and to give a new cha racter to every individual. I present this subject to the consideration of Congress, on the presumption that it may be found expedient and practicable to adopt some benevolent provisions having these objects in view, relative to the tribes within our settlements."

In the messages of 1819 and 1820, the passages relative to Indian affairs either do not bear so immediately on this question, or do not present any thing material to be quoted. In his inaugural address of 1821, Mr. Monroe expresses himself thus:

The care of the Indian tribes within our limits has long been an essential part of our system; but unfortunately, it has not been executed in a manner to accomplish all the objects intended by it. We have treated them as independent nations, without their having any substantial pretensions to that rank. The distinction has flattered their pride, retarded their improvement, and, in many instances, paved the way to their destruction. The progress of our settlements westward, supported, as they are, by a dense population, has constantly driven thein back, with almost the total sacrifice of the lands which they have been compelled to abandon. They have claims on the magnanimity, and, I may add, on the justice of this nation, which we must all feel. We should become their real benefactors; we should perform the office of their great father, the endearing title which they emphatically give to the Chief Magistrate of our Union. Their sovereignty over territories should cease; in lieu of which, the right of soil should be secured to each individual and his posterity, in competent portions, and, for the territory thus ceded by each tribe, some reasonable equivalent should be granted, to be vested in permanent funds, for the support of civil government over them, and for the education of their children; for their instruction in the arts of husbandry, and to provide sustenance for them until they could provide it for themselves. My earnest hope is that Congress will digest some plan, founded on these principles, with such improvements as their wisdom may suggest, and carry it into effect as soon as it may be practicable."

Dif

happiness, would be revolting to humanity, and utterly unjustifiable. Between the limits of our present States and territories, and the Rocky Mountains and Mexico, there is a vast territory to which they might be invited, with inducements which might be successful. It is thought, if that territory should be divided into districts, by previous agreement with the tribes now residing there, and eivil governments be established in each, with schools for every branch of instruction in literature and in the arts of civilized life, that all the tribes now within our limits might gradually be drawn there. The execution of this plan would necessarily be attended with expense, and that not inconsiderable; but it is doubted whether any other ean be devised, which would be less liable to that objection or more likely to succeed."

On the 27th January, 1825, Mr. Monroe sent his special message to Congress, on the subject of the Indians, accompanied by the then Secretary of War's plan of colonization. That message and report are comparatively so recent and well known, that he would only quote a short paragraph from each. Mr. Monroe says:

Experience has clearly demonstrated, that, in their pre sent state, it is impossible to incorporate them, in such masses, in any form, into our system. It has also demonstrated, with equal certainty, that, without a timely anticipation of, and provision against, the dangers to which they are exposed, under causes which it will be difficult, if not impossible to control, their degradation and extermination will be inevitable."

Mr. Calhoun, in his report, speaking of the southern tribes, says:

"Of the four southern tribes, two of them, the Cherokees and Choctaws, have already allotted to them a tract of country west of the Mississippi. That which has been allotted to the latter, is believed to be sufficiently ample for the whole nation, should they emigrate; and if an ar rangement, which is believed not to be impracticable, could be made between them and the Chickasaws, who are their neighbors, and of similar habits and dispositions, it would be sufficient for the accommodation of both. A sufficient country should be reserved to the west of the Cherokees, on the Arkansas, as a means of exchange with those who remain on the east. To the Creeks might be allotted a country between the Arkansas and Canadian