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than by its full belief that the right so to exercise it be-
bunal has decided that the power given to Congress,
to have added a proviso which would have effectually section 6: “If any citizen or other person shall into prevented them from the exercise of the power. In this any town, settlement, &c., belonging to any nation, or view, the treaty of Holston of 1785 is binding under the tribe of Indians, and shall there commit murder, by, killclause of the constitution which provides that “all debts, fing any Indian, &c., he shall suffer death." Would the: contracts, and engagements, entered into before the warrant of execution, issued under the law of Georgia, adoption of this constitution, shall be as valid against the be a justification ? Would this be an “ available plea in
United States under this constitution, as under the confederation.” But the power to regulate commerce with the Indian tribes not only was intended and believed to have excluded State jurisdiction over them, but such is the necessary consequence of the grant of the power. It has been before stated to be exclusive, and of conse. quence it denies to the States the exercise of jurisdiction in the regulation of commerce with the tribes. But a want of power to regulate commerce or intercourse with them, is a want of power to affect them, in any manner, by legislative enactment. The very circumstance that intercourse may, and must be had with them in some form, is conclusive that they are considered and to be treated as a community distinct from our own citizens. Now, how can a State legislate over a body of men with whom they are prohibited from having any intercourse, except under regulations prescribed by Congress There is no subject, there is neither territory nor person, on which legislation can act. If Georgia can of right pass
a law which operates upon the tribes, she can enforce it;
for it is idle to talk of the right to extend its laws to them,
bar F. It seems to me very clear that a State law operat-
May 18, 1830.] Removal of
the Indians. [H. of R.
States, and with the Indian tribes, that is, with a people not foreigners, not members of the Union, but distinct from them, called tribes. They did not profess to regu. late intercourse between citizens of the same State. If, however, the States by virtue of their sovereignty, can le gislate over the Indians, it is because they are members of their community, citizens, persons living within their jurisdiction; and thus the power given to Congress to regulate trade with them is annihilated. They are no longer tribes; they lose that distinctive emaracter and appellation, when they are claimed to be members of the State; and thus this clause in the constitution is a dead letter, it means nothing. One observation further on this part of the subject. The consent given by the States, in the constitution, that Congress shall have the exclusive power of regulating the trade with the Indians, is a virtual admission that they are not citizens or inhabitants of the States. They are not only called tribes, but are treated as distinct communities, not incorporated with the States; not a part of their population. Can the United States regulate trade and intercourse with the citizens of a county or town in any State? Can they make laws to govern a portion of the inhabitants of a State They certainly can do it, if the Indian tribes are citizens of the States within whose limits they reside. It cannot, however, be seriously contended that the constitution has vested in Congress any such power as that which would of necessity result if the Indi. ans are citizens of the States. By the constitution, “power” is given to the President, “by and with the advice and consent of the Senate, to make treaties.” This power is also exclusive, and, whenever lawfully exercised, supersedes all State legislation incousistent with it; for by the same constitution it is provided “that all treaties made, or which shall be made, under the authority of the United States, shall be the su. E. law of the land; and the judges in every State shall bound thereby, anything in the constitution or laws of any State to the contrary, notwithstanding.” In pursuance of the power thus given, what at least are called treaties, have been made with the Southern Indians. I shall endeavor to show that these treaties, or by whatever name they may be called, contain provisions which exclude all legislation over them by the States within whose chartered limits they are located; and that these treaties are “the supreme law of the land.” The treaties with the Cherokees are those to which I shall refer, for it is from them we have had memorials soliciting protection from the legislation of Georgia, and those made with other tribes contain similar provisions. That these treaties, in terms, and in the fullest and most solemn manner, guaranty to them forever all their lands not eeded, is admitted. Any legislation, either of the United States or the States, which would deprive them of their possessions, would, of course, be an infraction of these compacts. No such legislation, (if the treaties are valid,) which would produce this effect, directly, or indirectly, ean be admitted. These propositions need no illustration or argument to support them. • But not only is this species of legislation prohibited, but legislation in every form,and for any purpose, by the States, is equally prohibited. • The treaty of Holston, July 2, 1791, was the first one made with the Cherokees, after the adoption of the constitution; and the subsequent treaties are considered and declared to be additional to, and forming a part of this treaty. JLet me now ask the attention of the eommittee to several clauses in this treaty. The Cherokees are placed under the protection of the
TInited States, and of no other sovereign whatever; they stipulate not to hold any treaty with any individual State.
The United States are vested with the sole and ol. right of regulating their trade; they may punish at their
pleasure any citizen of the United States who settles on their lands: all persons are prohibited from going on to their lands without a passport; they shall deliver up offenders guilty of certain specified crimes against the citizens of the United States, to be punished according to the laws of the latter; and offenders against them shall be punished as though the crimes had been committed within the territory and jurisdiction of the United States. And by the fifth article of the treaty of Hopewell, which, in 1790, General Washington declared was in full force, and the provisions of which he felt bound to carry into faithful execution, the Indians are admitted to have the power to punish, at their discretion, and in such manner as they please, those settlers upon their lands, who will not remove within six months after the ratification of the treaty. In the face of these treaty provisions and recognitions, can the States legislate over them Can they exercise an authority over them, even for protection, when that power is confided to the United States? And what does protection imply Merely security in the enjoyment of their lands This term is general, and applies to all their then existing usages and customs. It is to be a protection against all who attempt to intermeddle with them; they have abjured the protection of all sovereignties but the United States; to them is confided the right to regulate the trade with them ; to them, offenders are to be given up ; by them, offenders are to be punished. And the United States bind themselves to observe all these stipulations. How is it possible that a State can enact a law which shall operate, in a territory guarantied exclusively to the In: dians, and over a community whose relations are declared to exist only with the United States, and whose local jurisdiction is admitted by these provisions to be exclusive of the Federal Government # And now, in what light are these treaties to be considered with reference to the character of one of the contracting parties Do they, or do they not, imply and admit the Indian tribes to be independent of, and not subject to, the control of the States? and do they possess any binding force Let us attend to the language of General Washington on this subjeet. On the 22d of August, 1789, he came into the Senate chamber, and asked the advice of the Senate, among other things, on these two points: “Shall a solemn guaranty” be given “by the United States to the Creeks of their remaining territory, and to maintain the same, if necessary, by a line of military posts f" “If all offers should fail to induce the Creeks to make the desired cession to Georgia, shall the commissioners make it an ultimatum " To the first question, the Senate answered in the affirmative; to the second, in the negative. On the 17th of September, 1789, General Washington sent a message to the Senate, in which he states that “it is important that all treatles and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity.” After speaking of the practice of the United States with European nations, not to consider any treaty as conclusive until ratified, and suggesting that the same course would be advisable in relation to treaties made with the Indians, he asks of the Senate their opinion and advice, whether certain Indian treaties were to be considered as perfected and ratified, and consequently as obligatory without being ratified; and if not, whether these treaties ought to be ratified. The Senate answer by adopting the following resolution: “Resolved, That the Senate do advise and cousent that the President of the United States ratify the treaty." Can any language be more expressive of the opinion of the President and of the Senate that these treaties were of the character contemplated by the constitution requiring ratification, as made with a nation having the power to enter into them, and therefore as independent, having the power of self-government # And it is to be observed that the practice, in regard to these *
Indian treaties, has been uniformly the same from that time to the present. . * On the 11th August, 1790, General Washington sent a message to the Senate, in which he asks the advice of the Senate, whether “overtures shall be made to the Cherokees to arrange a new boundary, so as to embrace the settlements made by the white people since the treaty of Hopewell;" and whether the United States should “stipulate solemnly to guaranty the new boundary which may be arranged.” The Senate gave their advice, by answer. ing both these questions in the affirmative. observed, also, that, in this message, General Washington explicitly states that he shall consider himself bound to exert the powers entrusted to him by the constitution, in order to carry into faithful execution the treaty of Hopewell. Let me now turn the attention of the committee to the opinions entertained by the distinguished men who negotiated the treaty of Ghent, speaking in the name of the Government, and whose attention was particulary called to the subject by the British negotiators; and let it be remembered that some of them, at least, were advocates of the rights of the States, and of what has been called, in modern times, a strict construction of the powers of the General Government. These opinions unequivocally support the Indian tribes in their right to be governed by their own laws and usages. In their note to the British commissioners, dated September 9th, 1814, they use the following language: “A celebrated writer on the laws of nations, to whose authority British jurists have taken particular satisfaction in appealing, after stating in the most explicit manner the legitimacy of colonial settlements in America, to the exclusion of all rights of uncivilized Indians, has taken occasion to praise the first settlers of New England, and the founder of Pennsylvania, in having purchased of the Indians the lands they resolved to cultivate, notwithstanding their being furnished with a charter from their sovereign. It is this example which the United States, since they became, by their independence, the sovereigns of the territory, have adopted and organized into a political system. Under that system, the Indians residing within the United States are so far independent. that they live under their own customs, and not under the laws of the United States; that their rights to the lands where they inherit or hunt, are seeured to them by boundaries defined in amicable treaties between the United States and themselves; and that whenever these boundilries are varied, it is also by amicable and voluntary treaties. They are so far dependent as not to have the right to dispose of their lands to any private persons, nor to any Power other than the United States, and to he under their protection alone, and not under that of any other Power. Whether called subjects, or by whatever name designated, such is the relation between them and the United States. These principles have been uniformly recognised by the Indians themselves in all the treaties between them and the United States.” I now invite the attention of the committee to the Cherokee treaty of July 8th, 1817, which was negotiated by the present Chief Magistrate of this nation, as one of the Commissioners. And it is worthy of particular notice, that it was under the faith of this treaty, and one of the objects for which it was made, to enable the Cherokees to establish a Government of their own, and adopt laws more in unison with republican principles than their former usages, and which laws and Government the State of Georgia claims a right to abolish. The preamble recites that the upper Cherokee towns are desirous of contracting their society within narrow limits, that they may begin the .. of fixed laws and a regular Government; and for this purpose re. quest a divisional line to be established between them and the lower towns; and to carry into effect the before re. *
It is to be ry
cited promises with good faith, the Cherokees make a cession of part of their lands to the United States. . It is very obvious that the only object of this treaty, and the cession made under it, was to enable the Cherokees who remained east of the Mississippi to institute a Government and enact laws suited to their then condition. This object was well understood by the commissioners who negotiated, and by the President and Senate who ratified, this treaty. As an inducement to effect this object, to them so desirable, they made large grants of their territo: They proceeded to establish their government and laws, to "engage in the pursuits of agriculture and civilized life,” upon the faith of this treaty ; and eleven years afterwards, they are informed by the President, who negotiated the treaty, and speaking in behalf of the Government which ratified it, that they cannot be protected in the enjoyment of that Government and those laws, but that the State of Georgia may lawfully abrogate both. Was this the view taken of their rights by the eommissioners, and by the President and Senate in 1817 t , Was it not conceded by them all, that the Cherokees had the right to institute a form of Government and make laws for themselves, and that they should not be molested, but protected in the exercise of that right? In July, 1787. Congress passed an ordinance for the government of the territory northwest of the river Ohio, the fourth article of which provides that the “the utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.” In the cession by Georgia, in 1802, it is provided that when the territory ceded by her shall be formed into a State, it shall be admitted as such into the Union, on the conditions and with the restrictions contained in the foregoing ordinance, except the article which forbids slavery. In 1817, Congress authorized the inhabitants of the western part of the Territory of Mississippi to form a State Government, preparatory to her admission into the Union, with a proviso that the constitution and Government by them formed should not be repugnant to the before mentioned ordinance, and the provisions of the deed of cession by Georgia. In the same year, Mississippi, having formed a constitution and State Government, declared by Congress to be in conformity to the principles of the foregoing ordinance, was admitted into the Union. In 1819, Alabama was admitted on the same principles. From these acts two very obvious inferences are to be drawn. The one is, that, in 1802, Georgia considered the ordinance of 1787, which secured the property, the rights, and the liberty of the Indians, as not only just and roper, but as one which the continental Congress might awfully make. The other is, that the States of Alabama and Mississippi are precluded by the acts authorizing them to form a Government, and admitting them into the Union, to enact laws which shall infringe upon the rights of the Indians. In the Senate of the United States, in 1826, in the discussion of a bill making an appropriation for the repair of a post road in the State of Mississippi, in answer to an objection that the State ought to construct and repair its own roads, Mr. KING, of Alabama, said, “the road runs through the Indian country, over which the State of Mississippi had no control.” Mr. Johnson, of Kentucky, said, this “was a road opened by the United States, according to a treaty stipulation with the United States.” Mr. Ellis, of Mississippi, said, “the road did not pass
country was in the hands of Mr. Jefferson.
through one-seventh part of that State, and it was impossible for the State Government of Mississippi to have any authority over those lands, till the title to them was extinguished.” Mr. Eaton, of Tennessee, the present Secretary of War, said, a treaty had been entered into between the United States and the Choctaw Indians. The question of State rights had not then arisen, and the Government of this Under such an administration no attempt would have been made to enter into a treaty with a distinct sovereignty, that went to invade the principles of the constitution. “Ever since this Government had existed,” Mr. Eaton said, “they had proceeded on the principle that the Indians are a distinct sovereignty; it was an anomaly that one sovereignty should exist within the orbit of another; but they always had proceeded on this principle, and if they had any right to interfere with them, why did they proceed with them in the character of sovereignties #" Mr. Eaton contended that “by the provisions of this treaty, there was no cession of property on the part of these Indians: there was not even a cession of sovereignty. They, in their sovereign capacity as Indians, yielded their consent to the United States to open a road. The United States could not give the State of Mississippi any sovereignty over it.” Mr. BERRIEN, of Georgia, now Attorney-General of the United States, said, “the moderate reflection he had been able to bestow on this subject had reconciled his mind to the admission of the principle that the effect of this treaty was certainly of limited extent. This treaty was concluded before the admission of the State of Mississippi into the Union, and the parties to that treaty, being considered as distinct sovereignties, might have imposed on the United States certain obligations; from which obligations they could not disengage themselves by any new compacts entered into with the people of Mississippi on their admission into the Union.” Mr. WHITE, at present a Senetar from Tennessee, and chairman of the Committee on Indian Affairs, in a written opinion given in 1824, says: “These people (the CheroKees) are now to be viewed as a nation possessing all the powers of other independent nations, which are not expressly, or by necessary implication, surrendered up by this treaty, (the treaty of Holston.) I have believed, and still do, that, under the treaties, the Cherokees must be considered a nation, possessing like powers with other nations, except so far as they have surrendered their independence to the United States.” Are these treaties, thus explained, binding . If they recognise and declare the Indian tribes with whom they are made, so far independent as to possess the right of governing themselves by their own municipal regulations, as not to be subject to the legislation of the States, and to have the sole right of occupancy forever to the lands described in the boundaries specified, are the treaties the supreme law of the land? Had the Government of the United States the power to enter into and to ratify them : It would seem to be somewhat novel that a necessity is supposed to exist to prove that the treaties made with the Indian tribes are valid: but this necessity is imposed, from the repeated declarations, made hypothetically indeed, upon the supposition that they conflict with the supposed and asserted rights of State sovereignty, that they were not lawfully entered into; that no power is given by the constitution to make these treaties; and, therefore, that they are void. Let me ask the attention of the committee to the proofs that they are compacts, which, if not fulfilled by us, will subject us to the imputation of violating our national faith; that they were, what they profess to be, made with full authority, and are now the supreme law. These treaties have received the sanction of every department of the Government, and by each been considered as binding on the contracting parties.
By the Executive. ... This is a necessity implied in making and ratifying them; for it is not to be presumed that the President would make, and that the Senate would advise and consent to a treaty, which they did not believe was binding on either of the parties to it. But we are not left to mere deductions or inferences from the exercise of the treaty-making power. The records of our Government furnish us with ample evidence of the opinions entertained of their validity by the illustrious men who have successively held the high office of President of the United States. General Washington, in a communication to the Senate in 1790, says: “The treaties which have been entered into with the other tribes in that quarter, must be faithfully performed on our parts: I shall conceive myself bound to exert the powers entrusted to me by the constitution, in order to carry into faithful execution the treaty of Hopewell.” “The letters to the chiefs of the Creeks are also laid before you, to evince that the requisite steps have been taken to produce a full compliance with the treaty made with that nation on the 7th of August, 1790. The Senate advised and consented that the President should cause the treaty concluded at Hopewell to be carried into execution according to the terms thereof.” “It is of some importance that the chiefs should be well satis: fied of the entire good faith and liberality of the United States.” Similar opinions were expressed by all the persons holding the office of President. I will detain the committee, by referring to those of Mr. Jefferson only. “The Government is determined to exert all its energy for the patronage and protection of the rights of the Indians. Until they cede their lands by treaty, or other transaction equivalent to a treaty, no act of a State can give a right to such lands.” The validity of these treaties has been fully recognised by the legislative department of the Government. It has passed, from time to time, laws regulating the intercourse with them; laws making appropriations of large sums of money to carry these treaties into effect: and the bill now under consideration proceeds upon the admitted principle that the Indian tribes have, by treaties, rights to lands which are to be extinguished, improvements which are to be purchased and paid for; and appropriates money for these objects; The judicial department, in the cases above referred to, has made a full recognition of the validity of these treaties. It speaks of them as subsisting; as containing provisions binding on the Fo to them, and which, like all other similar compacts within dependent Powers, are to be faithfully observed. I have, for another purpose, adverted to the opinions advanced by distinguished Senators and Representatives in Congress from the States within whose chartered limits the Indians reside; all sustaining the doctrine that these treaties are the supreme law of the land. I solicit the committee to examine them, in connexion with the topic of argument which I am now discussing: These treaties are and must be presumed to be valid, at least until declared to be void by the judicial department. It is not competent for Congress to declare them void. This power is not confided to this body, nor can they treat them otherwise than as binding, until that department of the Government to which alone is confided the authority to judge of their validity, shall pronounce them not to be the supreme law of the land. As these treaties were made under the authority of the United States, they are, of course, valid. The committee will notice the marked distinction which is made in the constitution between treaties and laws. Treaties made, or which shall be made, under the authority of the United States, and laws which shall be made in pursuance of the constitution, shall be the supreme law of the land. To