Indian Removal Debate 1830; Peleg Sprague, Part 1

INDIAN REMOVAL DEBATE
21 Congress 1 Session
Volume 6, Part 1, Columns 343-57

[Senate, April 16, 1830]

The Senate resumed, as the unfinished business, the bill providing for an
exchange of lands with the Indians residing in the United States, and
their removal beyond the Mississippi, when Mr. Sprague addressed the
Senate at length against the bill, and in reply to Mr. Forsyth; and
occupied the floor to a late hour. 

      Saturday, April 17, 1830 

The Senate having resumed the bill to provide for an exchange of lands
with the Indians; 

Mr.  Sprague concluded his remarks in reply to Mr.  Forsyth and Mr.
White, as follows: 

The gentleman who has just resumed his seat (Mr.  Forsyth) has indulged
in a wide range of remark in defence of his State, against imputations
which he supposed to have been elsewhere cast upon her.  This course may
have been very proper in him--I fully appreciate the motive which induced
it.  But I have no occasion to follow him; I have no wish to derogate in
the least from the character of Georgia, but rather that it should be as
elevated as her most devoted sons can desire.  I shall speak of her so
far only as may seem necessary to the free discussion of the subject
before us.  

This bill and amendment, and the discussion, which they have produced,
[said Mr.  S.] involve the question of the rights and duties of the
United States, with respect to the Indian tribes generally, but more
especially the Cherokees.  With that people we have not less that fifteen
treaties; the first made in the year 1785, and the last in 1819.  

By several of these treaties, we have unequivocally guarantied to them
that they shall forever enjoy-- 

1st.  Their separate existence, as a political community.  

=== (page 2) ======================

2nd.  Undisturbed possession and full enjoyment of their lands, within
certain boundaries, which are duly defined and fully described.  

3d.  The protection of the United States against all in interference
with, or encroachments upon, their rights, by any people, State, or
nation.  

For these promises, on our part, we received ample consideration-- By the
restoration and establishing of peace.  By large cessions of territory.
By the promise on their part to treat with no other State or nation, and
other important stipulations.  

These treaties were made with all the forms and solemnities which could
give them force and efficacy; by commissioners, duly appointed with full
power; ratified by the Senate; confirmed by the President; and announced
to the world, by his proclamation, as the binding compact of the nation,
and the supreme law of the land.  

The Cherokees now come to us, and say that their rights are in danger of
invasion from the States of Georgia and Alabama; and they ask if we will
extend to them the protection we have promised, and perform the
engagements we have made.  This is the question which they distinctly
pro- pound, and which we must unequivocally answer; and we are now
discussing what our response shall be.  There is a broad line of
distinction between the claims of Georgia, and those of Alabama and
Mississippi, which seems heretofore to have been unobserved, but which I
shall endeavor to keep in view.  Let us first inquire what our duties are
with respect to Georgia; for if her pretensions are unfounded, those of
Alabama, and Mississippi fall of course.  It is not necessary to
determine whether the Indians have just grounds for their apprehensions
or not, because the question is whether, if the rights secured to them by
our treaties should, at some future day, be invaded, we will perform our
engagements?  But have they not some cause for their present alarm?  In
December, 1827, a committee of the Legislature of Georgia made a report,
accompanied by sundry resolutions, which were accepted by both branches,
and the resolutions also received the approval of the Governor.  In the
report we find the following 

=== (page 3) ====================== 

language, respecting the territory of the Cherokees: "The lands in
question belong to Georgia--she must and she will have them." And in the
resolutions, the following: 

"Resolved, That all the lands appropriated and unappropriated, which lie
within the conventional limits of Georgia, belong to her absolutely that
the title is in her; that the Indians are tenants at her will; that she
may at any time she pleases, determine that tenancy by taking possession
of the premises, and Georgia has the right to extend her own authority
and laws over the whole territory." 

"Resolved, That Georgia entertains for the General Government so high a
regard, and is so solicitous to do no act that can disturb or tend to
disturb the public tranquility; that she will not attempt to enforce her
rights by violence, until all other means of redress fail." 

"Resolved, That, to avoid a catastrophe which none would more sincerely
deplore than ourselves, we make this solemn appeal to the United States,
&c." 

It is thus asserted as the right, and avowed as the determination, of
Georgia, to exercise absolute power over the Cherokees, and to take their
land at all hazards--even by violence, if other means should fail.  The
gentleman from that State [Mr.  Forsyth] observed, in the commencement of
his speech, that he felt himself bound in conscience to relieve his
friend from New Jersey from all apprehensions of a violation of the faith
of the nation, by demonstrating that the claims of Georgia were supported
by treaties.  And he proceeded to do so in language so strong, and in
tones so triumphant, as to make an evident impression upon members of the
Senate.  Let us deliberately examine his argument.  

Mr.  Forsyth explained, he had remarked upon that treaty in answer to the
gentleman from New Jersey, [Mr.  Frelinghuysen] and not as bearing upon
the rights of the Cherokees.  

Mr.  Sprague resumed, he was glad to receive the gentleman's explanation;
it precluded the necessity of any further remark upon that topic.  

The treaty next cited was that of Dewitt's corner, A.D.  1777, between
South Carolina, Georgia, and the Cherokees, by which the later
acknowledged that a portion of their country, extending as far as the
Unacaye mountain had been conquered, and they made a cession of the same
by defined boundaries, to South Carolina, and to her only.  

=== (page 4) ====================== 

The conquered and ceded territory lies wholly within the State; and it is
not now, and has not been for at least one generation, either claimed or
occupied by the Indians.  What right can that confer on Georgia, to lands
now owned and possessed by the Cherokees?  

The next position was, that the right of his State was derived under the
ninth article of the treaty of Hopewell, made between the United States
and the Cherokees, in November, 1785; by which they Save to the United
States the right of managing all their affairs.  To this Georgia was no
party.  But the gentleman contends that the United States transferred all
their power and claims, under the treaty, to that State, by virtue of the
compact of 1802, and that we now cannot interfere with her pretensions.
The clause in the compact, which is relied upon, is this: the United
States "cede whatever claim, right, or title they may have to the
jurisdiction or soil of any lands lying" within the limits of Georgia.  

Does this relinquishment of the right of the United States to the soil
and jurisdiction of the lands purport to transfer a pre-existing treaty
with the Indians?  Was it so intended?  And if it had been, is the power
which the treaty confers to legislate for their benefit, in its nature
transferable?  The article is in these words: "For the benefit and
comfort of the Indians, and for the prevention of injuries and
oppressions on the part of the citizens of Indians, the United States in
Congress assembled shall have the sole and exclusive right of regulating
the trade with the Indians and managing all their affairs, in such manner
as they think proper." The power given is strictly personal and
fiduciary; to be exercised according to the judgment upon future events,
and for their benefit.  Can even a guardian transfer his rights and
duties at pleasure?  By the constitution, the fundamental compact,
Georgia has given to the United States the right to legislate, in certain
cases, over her citizens, for their benefit; for example, to organize,
arm, discipline, and call forth her militia.  Can the United States
transfer this right to South Carolina, or any other sovereign?

=== (page 5) ====================== 

The express words of the article require this right to be exercised by
the United States "in Congress assembled." Can we, without the consent of
the other party, strike out these words, and insert the Legislature of
Georgia?  

Again, in order to see that this power is properly exercised, the
thirteenth article secures to the Cherokees "the right to send a deputy
of their choice, whenever they think fit, to Congress." Shall he come
here to watch over the Legislation at Milledgeville?  

But, if this power was in its nature transferable, it must be so subject
to the restrictions and limitations in the treaty contained; among which
are the following: 

1st.  The Cherokees shall continue to exist as a distinct political
community, under the protection of the United States.  

2d.  That they shall enjoy the undisturbed possession of their lands.  

3d.  That the power to manage "their affairs" shall be exercised "for the
benefit and comfort of the Indians, and for the prevention of injuries
and oppressions." 

Did this give to the United States the right to drive them from all their
lands?  or to destroy the Cherokee nation, to strike it out of existence;
and, instead of managing for their "benefit," to annihilate "their
affairs" as a body politic?  Or could we convey a greater right we
ourselves possessed?  

But this is not all.  The gentleman passed over, in utter silence, a most
important event which intervened between the treat of Hopewell and the
compact of 1802.  It is the treaty of Holsten, made in 1791; by which the
United States again promised the Cherokees to protect them in their
rights as a nation; and the seventh article holds the following language:
"The United States solemnly guarantee to the Cherokees nation all their
lands not hereby ceded." If any right as transferred to Georgia, it would
be such only as existed at the time, and subject, of course, to the
stipulations of that pre-existing treaty.  

=== (page 6) ====================== 

There is still another view of this subject.  Are we not bound to 
see that our treaties are fulfilled?  The Indians say that their very
existence was threatened, and inquire of us, whether we will perform our
solemn promise of protection.  What shall we answer?  That we have
conveyed that promise to another!  That we have transferred our
obligation to Georgia!  have given her a license to violate our treaties!
May they not reply, that the very purpose for which they purchased our
guarantee, and the protection of the strong arm of our Government, was to
secure them against the encroachments of their white neighbors in that
State?  

The compact of 1802, which has been so much insisted upon, was made
between the United States and Georgia.  The Cherokees were not parties,
nor even assented to it.  Of course it could not impair their rights, or
confer upon others any claims against them.  If I [said Mr.  S.] should
promise the gentleman that I should obtain your farm and convey it to
him, would that divest your title, or authorize either of us to wrest it
from you by force?  The compact itself expressly recognized "the Indian
title," and the United States were to extinguish it only when it could be
done "peaceably" and on "reasonable terms." 

The gentleman having, as he supposed, fully sustained the treaty claims
of Georgia, by the arguments upon which I have remarked, triumphantly
exclaimed, "I will have my bond; I will have my pound of flesh." A most
unfortunate allusion, sir, and one which I should not have been unkind
enough to make.  He will have his pound of quivering flesh, taken from
nearest the heart of the living man!  But he will take it without one
drop of blood; 

--"Ay--there's the rub,"
For, in the cutting of the pound of flesh,
What human blood shall flow--"must give us pause."

The fiend-like Shylock himself could not take the penalty of his bond,
because "no jot of blood" was given.  And none is given here, but the
express contrary--"peaceably"-- "peaceably"--and "upon reasonable terms,"
too, is the emphatic language.  But against whom does the gentleman make
his claim--the Indians?  Does he hold their bond?

=== (page 7) ====================== 

No, they hold ours; they now present it to us, and demand its
performance; and, "till he can raid the seal from off that bond," he
cannot absolve us from its obligations.  He declares that he will have
the terms of his compact fulfilled to "the twentieth part of one poor
scruple," and to the division of a hair.  So be it; and let the Indian
too have their guarantied rights maintained with equal scrupulosity.  

The honorable Chairman of the Committee on Indian Affairs, [Mr.  White]
conceded that the United States had repeatedly pledged their faith to the
Cherokees to interfere for their protection, but contended that we ought
not to perform these stipulations of our treaties because of the
conflicting claims of Georgia.  He laid down this proposition, that if
the United States had come into engagements inconsistent with each other,
so that it was impossible to keep both, that that which was prior in
point of time should be specifically performed, and ample compensation be
made for the breach of the other.  To this position I freely assent; and
upon this basis will rest the argument.  It is incumbent, then, upon the
honorable chairman to show, in the first place, that our obligations to
Georgia are incompatible with our treaties; and in the next place, that
they are of prior date.  This he, and two gentlemen who followed him in
the debate [Messrs.  McKinley and Forsyth] have attempted to do.  Their
argument is, that, before the Revolution, Great Britain had jurisdiction
over the aborigines, and the sole right of treating with them, and that
this power was wrested from her by conquest during the war, and forever
abandoned by the treaty of peace, in 1783.  

I would first observe that, if it was obtained by conquest, it belonged
to the conquerors.  And who were the conquerors?  The United States; who
were also a party to the treaty of peace.  Upon this ground it was, that
New Jersey, Delaware, Maryland, and other States, so strongly insisted
that the Crown lands, which had been acquired by the common arm and at
the common expense, belonged of right to the common fund.  Their demand,
to a great extent, succeeded.  The several States yielded to their
pretensions by successive cessions; Virginia magnanimously taking the
lead.  But I shall not dwell upon this; for I mean, as far as possible,
to avoid all debatable ground.

=== (page 8) ====================== 

Concede, then, for the present, that when Georgia became independent, in
1776, she at once succeeded to all the pre-existing rights of Great
Britain over the unmeasured forests within her chartered limits.  What
was that right?  Gentlemen say it was the right of discovery.  Discovery,
sir, confers no claim or right against the natives, the persons
discovered, but only as between discoverers.  It is said that the rights
derived from this source were established and defined in Europe, upon the
first discovery of this country.  True, but it was by that mutual
understanding and agreement of the nations of that continent only, in
order to regulate their conduct among themselves.  To prevent conflict
and collision, it was tacitly agreed that the Sovereign who should find a
country theretofore unknown should have the exclusive right to the
benefits of the discovery, and should be permitted, without interference,
to conduct toward the aboriginal inhabitants according to his conscience
and his ability.  He had, therefore, as against discovering nations who
has assented to the arrangement, a conventional right to wage war and
conquer the natives, and subject them to his sway.  It is this right to
which it is contended that Georgia succeeded upon the declaration of
independence.  Let it be so considered; and that in the war which she
should wage to subjugate the Indians, no other state or nation could
rightfully interfere.  But the people attacked had a right to resist.
They surely were under no obligation to acquiesce in the proposed
subjugation.  Suppose, then, that they should happen to be too strong for
their assailants; that they should roll back the tide of war--the hunters
should be hunted--that those who came to conquer should be in danger of
being conquered, and, in such an emergency, the people of Georgia should
call upon another State, Virginia, for example, for protection and
defence.  Georgia would thus have waived her conventional right to
exclude all others from her limits, and Virginia would, at her request,
become a party to the war.  Would not Virginia, then, have the right to
make peace for the security of her own citizens, and must she not be
bound by its terms?  Was France bound by her treaty of alliance with us
during the Revolution?  Yet her interference was without the consent of
Great Britain, the discoverer.  Are the United States now bound by their
treaties with the States of South America?  

=== (page 9) ====================== 

But further: what if Georgia, in order to induce her neighbors to come in
for her defence, had expressly agreed, beforehand, that Virginia should
have the sole power of conducting the war, and concluding the peace;
would not both States be bound by the treaty of peace thereupon made by
Virginia?  To proceed one step farther; suppose that this arrangement
between the two States, instead of being occasional, should be
established by a permanent compact; and that, in order to obtain the aid
and protection of Virginia, at all times, against the attacks of the
Indians, Georgia should agree that she never would herself provoke such
attacks by making war upon them; and that if it should arise, her more
powerful ally should have the entire management of the war, and the
exclusive right of agreeing upon the terms of peace and the treaty; would
not such terms be obligatory?  

Now, sir, such a compact was actually made by Georgia with Virginia and
eleven other States, by the articles of confederation.  By the third
article, the United States are bound to assist the several States
"against all force offered to, or attacks made upon them, or any of
them." And by the ninth article, the United States have "the sole and
exclusive right and power of determining on peace and war, except in the
cases mentioned in the sixth article," and also of "entering into
treaties." Here is the express grant.  What answer can be given to it?
What reason can be assigned, why each State should not be bound by the
stipulations of a treaty of peace?  Will it be said that we could not
have the relations of peace and war with the Indian tribes?  Ask the
relatives of Braddock and Butler, of Wayne, Harmar, and St.  Clair, if
Indians can wage war?  Consult the crimsoned pages of your history, and
they will answer you.  Nay, to banish such a suggestion forever, the same
ninth article of confederation expressly declares, that by war it means
to include contests with Indians; for, by reference, it incorporates into
it the 6th article, which is in these words: 

=== (page 10) ====================== 

"Art.  6.  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
formed by some nation of Indians to invade such State, and the danger is
so imminent as not to admit of a delay until the United States, in
Congress assembled, can be consulted." 

Here is, also, an unequivocal relinquishment by each State, of the right
to make war upon the natives.  

During the Revolution, war actually existed between the United States and
the Cherokees; it continued to Rae after the acknowledgment of our
independence by Great Britain.  Georgia needed our aid, and received it.
The Indians were then powerful and terrific.  The United States were
desirous of peace; they sought it, and it was established, in 1785, by
the treaty of Hopewell, which has been already referred to.  It secured
to the Cherokees their previous right to exist as a community upon the
territory in their previous possession.  Such a treaty would have been
obligatory upon any state, if the articles of Confederation had never
existed; but by that compact a right was expressly given by Georgia
herself, to make it, and the United states were in duty bound to exercise
that power.  

And I now ask, what prior incompatible obligations to Georgia absolve us
from its stipulations, or render it impossible to fulfil them?  

Such was the power, and such the practice of the Confederation, up to the
time of the formation of our present constitution, in September, 1787.
No longer previous than the preceding month, we find a committee of
Congress, in an able and elaborate report, that the United States cannot
interfere in behalf of a State against a tribe of Indians, "but on the
principle that Congress shall have the sole direction of the war, and the
settling of all the terms of peace with such Indian tribe." And this
language was addressed particularly to Georgia, by name, and with respect
to the Indians within her limits.  This was in August.  

The constitution was formed in the following September.  The sixth
article declares, that "treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land,"
"any thing in the constitution or laws of any State to the contrary
notwithstanding." 

=== (page 11) ====================== 

This was an express confirmation of the treaty of Hopewell, which had
been made in November, 1785, less than two years before, and was then in
full force.  The State of Georgia, with full knowledge that it had been
so made, and that it was considered by the United States to be valid and
obligatory, voluntarily accepted the constitution, thereby herself most
solemnly affirming and establishing that treaty; and, whatever may have
been said before, never since that time, until recently, when the present
controversy arose, has she in any manner denied its validity, or objected
to its being carried into effect.  Such is the argument in support of the
treaty of Hopewell.  I shall leave it by adducing but one other proof of
its validity, in the opinion of General Washington, and the Congress of
1778, and their determination to enforce it with scrupulous fidelity.  It
is the proclamation of September 1, 1778 which declares it to be "the
firm determination of Congress to protect the said Cherokees in their
rights, according to the true intent and meaning of the said treaty;" and
a resolution was adopted, to hold in readiness a sufficient number of
troops to enforce that declaration.  Under our present constitution, many
treaties have been regularly made with the Cherokees.  The first was at
Holsten, in 1791.  The reasons which have been adduced in support of the
power to make the treaty of Hopewell are applicable to this with
increased force.  

The constitution was formed because the Confederation was too weak to
answer the purposes of the Union.  It substituted a Government in place
of a mere confederacy; conferring upon it additional power, and father
limiting those of the individual States.  By the articles of
Confederation, the power of Congress to regulate the trade and manage
affairs with the Indians, was subject to a proviso, that "the legislative
right of any State, within its own limits, should not be infringed." This
restriction is the only ground upon which doubts could ever have been
suggested, of the power of the Confederation to enter into treaty
stipulations; it gave no countenance, however, to such suggestions,
because it was a limitation upon another grant of power, distinct from
that of establishing peace and making treaties.  But even this
restriction is omitted in the constitution, and Congress are empowered
to regulate commerce with the Indian tribes in unqualified terms.  

=== (page 12) ====================== 

The constitution vests in the United States the sole and exclusive power
of making war and concluding peace.  It expressly provides, that "no
State shall engage in war," or, "enter into any treaty." Here is an
unequivocal relinquishment of the right of Georgia to make war upon or
treat with the Indians.  And what is the right which it is said devolved
upon her as successor to the sovereignty of Great Britain?  The right of
a discoverer; that is, a right, as against others, and without their
interposition, to attack, and by force subdue the natives; to make war
for the purpose of conquest.  But Georgia convenants, by our fundamental
compact, not to engage in war, for that or any other purpose; to attach
no nation or political community.  

The United States have the sole power of making peace; this can be done
only in treaty.  At Hopewell, in 1786, we made a treaty of peace.  Open
war had raged between the United States and the Cherokees up to that
time.  They had been the allies of Great Britain, but never had been
ours; or in any manner contracted with us.  Was not that treaty
rightfully made and obligatory?  

At Holsten, in 1791, we made a treaty of peace and friendship.  It is so
denominated on the face of it.  It was the termination of an actually
existing war; of this there is no doubt.  The chairman of the Committee
of Indian Affairs, in his written opinion of 1824, states the fact, that
war was raging.  The gentleman from Georgia says that his State applied
to the United States for aid and protection in that war.  The report of
the Committee of Indian Affairs now before us, declares that the
Cherokees waged war against the citizens of the United States.  At
Holsten we then undeniably made a treaty of peace to terminate an
existing war.  The authority was express and exclusive.  Are not the
United States bound--will they abide by it?  

The first article is, "There shall be perpetual peace and friendship
between all the citizens of the United States of America, and all the
individuals composing the whole Cherokee nation of Indians." 

=== (page 13) ====================== 

"Article 7.  The United States solemnly guarantee to the Cherokee nation
all their lands not hereby ceded." 

"Article 15.  All animosities for past grievances shall henceforth cease,
and the contracting parties will carry the foregoing treaty into full
execution with all good faith and sincerity." 

The question now is, shall we carry these articles into effect with any
good faith or sincerity?  

Will it be pretended that the United States might make peace, but had no
authority to insert such stipulations as those I have quoted.  Sir, the
substance of these articles are of the essence of a treaty of peace.  In
every contract each party recognizes the separate existence of the other;
and a treaty of peace--not a truce, not an armistice, not a temporary
cessation of hostilities, but a treaty of peace-- in its nature a
permanent, enduring contract, must bind each party to respect the
existence of the other, and never to assail or attempt its destruction:
must obligate each also to permit the other to continue that existence
upon its own territory without attack or violence.  To attempt to expel
them by force, or subjugate or destroy their separate being, is a
violation of the compact of peace, and a renewal of the war.  In
terminating hostilities, therefore, by the undoubted constitutional
power, the United States not only rightfully, but of necessity, embrace
such terms as these.  Are they not obligatory?  I am not contending,
[said Mr.  S.] that the United States can cede away a part of any State
to a foreign nation, as France of Great Britain, for example.  That
question I do not mean to touch; it is wholly unnecessary.  I only say,
that they may agree that the other party may continue to exist upon the
lands which they have always occupied; may retain that which has ever
been their own.  

But this is not all.  The constitution proceeds still farther, and gives
to the United States the general right to make treaties, not merely of
peace, but all others.  This power is not only clearly and positively
conferred on the Union, but expressly inhibited to its several members.
It has been repeatedly and continually exercised in relation to the
Indian tribes within the United States, and that by the acquiescence
and assent of Georgia herself.  

=== (page 14) ====================== 

I know it is said Georgia protested; and this has been repeated,
reiterated, and insisted upon, in every variety of form, as applicable to
both the treaties, and all the questions which have been presented.  Let
us examine: The first alleged protest was in February, 1786, prior to the
treaty of Holsten.  It is the report of a committee, accepted by the
House of Representatives only.  The objections urged therein apply
exclusively to the treaty of Hopewell, and must have rested only on the
ground of the reservation before mentioned, in one of the articles of
confederation, and which was omitted in the constitution.  

The next protest was in February, 1797.  It makes no objection whatever
to the treaty of Holsten, and thereby impliedly approves and assents to
it.  It protests against two treaties with the Creeks made at New York,
and Colerain, and the intercourse law of the United States.  The grounds
of objection insisted on are, that the intercourse law places the
military above the civil authority, and prohibits pursuit and retaliation
for Indian outrages.  That the Creeks, by the treaty of Galphinton, in
1783, confirmed by a subsequent treaty at Shoulderbone, had submitted
themselves to Georgia, and become members of the State, and ceded to her
a tract of land, which had been actually organized into a county by the
name of Tallahassee.  And the State protests, "because the treaty of New
York in 1790, after the said cession being acted on constitutionally,
erected and laid out into a county, and the lands appropriated, did
sever, cut, and lop off the land so ceded before the power of the Federal
constitution existed, and ex post facto declared they were vested in, and
belonging to, the Creek nation of Indians; and because the said
intercourse law and treaty of Colerain have confirmed the same.  

Their complaint is, substantially, that the United State had taken from
Georgia, lands which had "been duly ceded, fairly paid for, and legally
and constitutionally laid out into a county." In conclusion, they "most
fervently solicit a revision of the intercourse law and the New York and
Colerain treaties, and requiring a confirmation of the county of
Tallahassee to the State. 

=== (page 15) ====================== 

" And "they must earnestly solicit the assistance of the United States
to attain the cession of land the treaty of Colerain, they trust, was
intended to establish." These protestations insist that the treaties of
Galphinton and Shoulderbone were valid by reason of the before named
reservation in the articles of confederation; but no where deny, and, by
implication, admit, the general right of the United States to make
treaties with the Indian tribes, and guarantee to them the possession of
their lands.  They do not breathe a whisper of objection to the treaty of
Holsten, of 1791, or to any of the powers involved in making it, but
acquiesce therein.  

In February, 1796, by an act of her Legislature, to which I shall
hereafter recur, she expressly declared that the United States had the
right to make treaties with the Indians; a right which they have
continually exercised, and which she has never questioned, until this
recent controversy arose.  Not less than fourteen treaties have been
entered into with this same Cherokee nation since the adoption of the
constitution: in 1791, 1792, and 1794, by General Washington; in 1798, by
Mr.  Adams; one in 1804, two in 1805, one in 1806, and one in 1807, by
Mr.  Jefferson; three in 1816, by Mr.  Madison; one in 1817, by Mr.
Monroe, General Jackson being the negotiator; and one in 1819, by the
same President, Mr.  Calhoun being the negotiator.  By more than half
these treaties large cessions of land were obtained, boundaries defined,
and the remaining territory, and the protection of the United States
again and again guarantied to the Indians.  

Shall Georgia now be permitted to deny their validity?  If a man seeing
another in the act of making a deed of his land to a third person, shall
stand by in silence, until the conveyance is completed, and the grantee
has parted with his money, paid the consideration, would any chancellor,
that ever sat in a court of equity, permit that man to reclaim his
property, and thus consummate a fraud on the fair purchaser?  But suppose
that he shall not only thus witness the conveyance perfected and the
money paid, but himself receive the consideration, can he, with the
fruits of the contract in his pocket, lay his hand upon the property and
wrest it from the innocent grantee? 

=== (page 16) ====================== 

Georgia not only acquiesced but actually received all the lands ceded by
the Indians, and for which they obtained our promise of protection.  I
have in my hand some of her laws disposing of the acquisitions.  

The title of one is: "An act to dispose of and distribute the cession of
land obtained from the Creek and Cherokee nations of Indians by the
United States, in the several treaties of loth August, 1814, 8th July,
1817, and 22d January, 1818." 

And of another: "An act to dispose of the territory lately acquired of
the Cherokee Indians by a treaty held by the honorable John C.  Calhoun,
at the City of Washington, on the 27th day of February, 1819." There are
others of similar tenor.  

And now retaining these acquisitions, holding the proceeds of these
treaties in her hands, she declares that they are invalid; thus, at the
same moment, binding the Indians by their stipulations, and denying them
the benefit of ours.  She has not only thus declared the right of the
United States to make treaties, and assented to them when made, but has
repeatedly urged that they should be entered into for the purpose of
obtaining farther acquisitions for her benefit; and even as late as the
year 1823, contended that the treaty of the Indian Springs with the
Creeks was obligatory, and should be carried into effect.  And it was not
until the Indians had firmly refused to assent to farther cessions, and
it was perceived that no more lands could be acquired by negotiation,
that the doctrine arose which denies to the United States their right to
make these compacts.  What have the Senate heard to obviate the force of
the facts and arguments which I have addressed?  What answers have been
given?  I will advert to them all.  

And, first, as to the acts and acquiescence of Georgia, we have the reply
in the report of the committee, that, as she protested against the treaty
of Hopewell, made in 1785, "no inference can be drawn to her
disadvantage, from her silence, or from any thing she may have said in
relation to any subsequent treaty, because in each of them a change was
made, by which a portion of her territory and jurisdiction was restored
to her, and thus her condition rendered better," &c. 

=== (page 17) ====================== 

Who does not perceive that, under this form of words of restoring -- what
she never possessed, but which belonged to the Cherokees, before she had
a being -- the substantial, real cause of her assent is alleged to be the
benefits which she received!  Yes, sir; she did receive the fruits of
these solemn contracts; by the establishing of peace and additions to her
territories, in 1791; by the cessions of 1798, 1804, 1806, 1807, 1816,
1817, and 1819.  And shall we be told that, because it was for her
interest to be silent, because she was receiving the consideration of the
compacts, therefore she now, after twenty years assent, is under no
obligation to abide by them?  

The honorable chairman, in his opening speech, assigned several reasons
why the United States could not constitutionally form such treaties.  The
first was, that "the creature could not possess power to destroy its
creator." This expression is calculated to mislead the judgment, because
it refers the mind at once to the relation by which we frail and feeble
mortals stand to our Omnipotent Maker; and it would seem to be just as
true to say, the creature cannot diminish the power of its creator.  The
gentleman applies it to the General Government, as the work of the
several States.  Is it true that it cannot, that it does not take any
power from its several members?  The argument is, that if the Union can
secure to the Indians any portion of her territory by treaty, they may
cede away a whole State.  This would, indeed, as the gentleman must
admit, be a gross and palpable abuse of the authority.  His reasoning,
then, must be, that the United States cannot possess any power which, by
perversion, may be exerted to the destruction of one of its members.  Can
they, then, make any treaty with a foreign nation?  If so, there is the
same danger of wrongfully transferring a State.  Can they make war?  It
would be the readiest means of lopping off a member by leaving it
defenceless.  Can they organize, discipline, and call forth the militia,
and control the whole physical strength?  Sir, these are powers expressly
inserted in the constitution, and they are not to be argued out of it by
apprehensions of extravagant possible abuses.  

The General government was formed by the States, and the creator, says
the gentleman, cannot have power to destroy any one of its creators.

=== (page 18) ====================== 

The State Governments, sir, were formed by individuals.  If any of these
should be guilty of a capital offence, might he not say, in the language
of the chairman, you cannot take my life -- it is impossible, in the
nature of things, that the creature can have power to destroy one of its
creators.  

It is argued that the existence of an Indian community, within the
chartered limits of a State, is inconsistent with "a republican form of
government," as guarantied by the constitution to every State.  This
argument has been much relied on.  It was advanced by the Secretary of
War, repeated by the committee, and reiterated in the speech of the
chairman.  If this be so, a most unexpected result follows: it is, that
Georgia has never yet had a republican form of Government; for there has
never been a moment when such tribes did not exist within her borders.
At the same time the adoption of the constitution, this same Cherokee
nation was much more numerous, and held sway over a much wider region
than at the present time.  Nay, the constitution itself confirms the
pre-existing treaty of Hopewell, which recognized and guarantied the
separate existence of the tribe; and which is now contended to be
incompatible with that fundamental compact.  Is the existence of a body
politic, which the Legislature cannot destroy, necessarily incompatible
with a republican form of Government?  How is it with Dartmouth College
in New Hampshire, or the chartered cities of other States?  

Another proposition, derived from the same elevated source, and urged
with equal vehemence here, is, that these treaties cannot be valid,
because the constitution declares that "no new State shall be formed or
erected within the jurisdiction of any other State, without the consent
of the Legislature" thereof.  Sir, no one proposes to create a new State,
but to continue an old tribe, or State, if you so please to denominate
it.  It is to keep faith with a political community more ancient than
Georgia herself; it is to preserve, not to form anew.  Here, again, I
would observe, that this nation of Cherokees was as much a State at the
time of the adoption of the constitution as now, and had much greater
power and more extensive dominion; and that the treaty of Hopewell,
which, this argument insists, formed a new State since the constitution,
and in violation thereof, was made two years before its adoption, and was
confirmed and sanctioned by it.  

=== (page 19) ====================== 

We are next told that the constitution recognizes the right of the
respective State Legislatures to pass their laws over, and annihilate
these communities, by that clause in the first article, which provides
that an enumeration of inhabitants, as a basis for representation, shall
be made, "excluding Indians not taxed." This provision undoubtedly
implies that there could be individual Indians subject to taxation, and
therefore to be counted; it also expressly declares that there might be
those within a State "not taxed." There may have been, nay, there were,
in some of the State, individual natives voluntarily residing within the
white settlements, separate from any tribe, and freely subjecting
themselves to the local laws.  There were those, too, whose nation, as a
body, had disappeared; and because these persons had, of their own
accord, thus sought the State jurisdiction, does it follow that it could
be extended over Indian nations, who had always resisted it, and with
whom, at the moment this clause was written, and the constitution formed,
the United States had a treaty guaranteeing them against such taxation,
and every other exercise of State authority over them?  By what
imaginable process could these words, "Indians not taxed," produce the
magical effect of annulling the treaty of Hopewell, then existing in full
force?  Let us substitute the word aliens for Indians.  The clause would
then exclude "aliens not taxed." Will it be contended that foreigners
existing as a nation, with whom we had treaties as such, would be subject
to the taxes of a State?  Would it not apply exclusively to the aliens,
who had separated themselves from the nation and mingled with our
citizens?  

As a last resort, and to me it seems a desperate one, it has been
earnestly contended by the gentlemen from Tennessee, Alabama, and
Georgia, (Messrs.  White, McKinley, and Forsyth,) that we cannot
constitutionally make any treaty with any Indian nation within the United
States, that the express power to make "treaties" does not embrace
compacts or agreements with such communities.  

=== (page 20) ====================== 

Wherever, sir, the relation of peace and war can exist, the United 
States must, of necessity, possess the right to make a treaty of peace.
That this relation may exist with these native tribes has never yet been
doubted, and will not at this day be questioned.  No one will have the
assurance, in the face of all history, in defiance of what is known by
the whole world, to declare that our contests with the aboriginal nations
are, on their part, insurrections, rebellions, subjecting them to be
tried and executed as traitors.  The Secretary of War will not say so:
for he told the Cherokees, in April last, "your people were at enmity
with the United States, and waged a war upon our frontier settlements; a
durable peace was next entered into with you until 1791." The committee
and its chairman [Mr.  White] will not tell us so: for their report,
accompanying this bill, declares that the Cherokees waged "a war against
the citizens of these States prior to the treaty of Holsten, in 1791.
"Rebellion!  by those who never owed allegiance, and with whom, ever
since our national existence, we have either had open war or subsisting
treaties!  But, independent of this power of peace and war, why does not
the general authority to make treaties embrace those with the Indians?
Gentlemen content themselves with a positive and earnest denial.  

The word treaties, say they, in the constitution, does not mean compacts
or contracts with Indian tribes.  Why not?  Did not those who formed and
adopted the constitution so understand it?  To answer this question we
must ascertain how that word was used, and what were the ideas attached
to it, at the time and anterior to its insertion in that instrument.
This rule of construction is the foundation of all science.  When any
term is used by an author, it is understood to carry with it the ideas
which he has previously affixed to it; that he denotes by it what he
always has done.  Hence, in the science of law, when the student has
ascertained what the writer means by the words fee simple, or larceny, if
he subsequently finds those words used by the same author, he attaches to
them the same meaning.  

These contracts with aboriginal communities have been denominated
treaties from the first settlement of this country.  It has been their
peculiar and appropriate name, without even an allus dictus.  Great
Britain made treaties with the Indians; the several colonies formed many,
and gave them the same appellation.

=== (page 21) ====================== 

The Continental Congress, from the time it first assembled until it 
was merged in the present national Government, uniformly called them
treaties.  They did so in 1778, 1776, 1778, 1783, 1784, 1785, 1786,
1787, 1788, and even to the day of the formation and adoption of the
constitution.  We find them repeatedly and particularly mentioned in
July, August, and October, 1787; the constitution being formed in
September of the same year.  

Nor is this all.  In the articles of confederation, power was given to
make treaties.  It had been repeatedly exercised in establishing our
relations with Indian tribes; particularly the Delawares, the Six
Nations, the Cherokees, the Choctaws, the Chickasaws, and the Shawnees;
and, on the first of September, 1778, was issued the proclamation of
Congress and of General Washington, to enforce the treaty of Hopewell.  

The word treaties, thus invariably known and used, and which had received
a practical construction under the confederation, was inserted by the
same great men in the constitution of the United States.  Could any one
doubt its meaning?  Did Georgia misunderstand it?  She had herself made
treaties with all the forms of negotiation, through commissioners fully
empowered, in 1773, 1783, and 1785, they were so denominated by her at
the time and ever afterwards.  On the 3d of August, 1787, a motion was
made by Mr.  Few, delegate in Congress from Georgia, seconded by Mr.
Blount, from North Carolina, to take measure to "explain and confirm all
former treaties," with the Creek Indians.  There is as much evidence that
this word was intended to embrace conventions with such communities as
the Creeks and Cherokees, as those with transatlantic nations, such as
France and Spain.  

Contemporary exposition has always been deemed of great force in settling
even the most difficult questions of constitutional law.  Practice and
precedent, too, have often been considered as decisive authority.  Mr.
Madison, who has, with so much justice, been denominated the great
constitutional lawyer of this country, declared, in a message to
Congress, that the question of the constitutionality of the Bank of the
United States, had been so settled by the sanction of the different
departments of the Government, that it was no longer to be agitated;
and yet only one bank had then been chartered.  If his argument had,
in that instance, any force, it is here irresistible.  

=== (page 22) ====================== 

From the organization of the Government down to this very session of
Congress the practice has been unbroken and invariable.  We find these
treaties made in 1789, 1790, 1791, 1792, 1794, 1795, 1796, 1797, 1798,
and almost, if not quite, every year since.  I have counted no less than
one hundred and twenty-four Indian treaties, formed under the present
constitution, being more than three for each year.  If authority and
practice can settle any question, this is at an end.  

In 1799, General Washington delivered a speech to the Seneca Indians,
some extracts from which I will now read: 

"I, the President of the United States, by my own mouth, and by a written
speech signed with my own hand, and sealed with the seal of the United
States, speak to the Seneca nation." 

"The General Government only has the power to treat with the Indian
nations, and any treaty formed and held without its authority will not be
binding." 

"Here, then, is the security for the remainder of your lands.  No state
nor person can purchase your lands, unless at some public treaty held
under the authority of the United States.  The General Government will
never consent to your being defrauded; but it will protect you in all
your just rights." 

"Hear well, and let it be heard by every person in your nation, that the
President of the United States declares, that the General Government
considers itself bound to protect you in all the lands secured to you by
the treaty of Fort Stanwix, the 22d of October, 1784, excepting such
parts as you may since have fairly sold to persons properly authorized to
purchase of you." 

Again-- 

"But your great object seems to be the security of your remaining lands,
and I have, therefore, upon this point, meant to be sufficiently strong
and clear." 

=== (page 23) ======================

"That in future you cannot be defrauded of your lands.  That you possess
the right to sell, and the right of refusing to sell your lands." 

"That therefore the sale of your lands in future will depend entirely
upon yourselves." 

"But that when you may find it for your interest, to sell any parts of
your lands, the United States must be present by their agent, and will be
your security that you shall not be defrauded in the bargain you shall
make." 

"You now know that all the lands secured to you by the treaty of Fort
Stanwix, excepting such parts as you may since have fairly sold, are
yours, and that only your own nets can convey them away.  Speak,
therefore, your wishes on the subject of tilling the ground.  The United
States will be happy to afford you every assistance in the only business
which will add to your numbers and happiness." 

"The United States will be true and faithful to their engagements." 

"Given at Philadelphia, 29th December, 1790." 

GEORGE WASHINGTON.  

"By the President: 

THOMAS JEFFERSON.  

"By command of the President of the United States.  

"H.  Knox, Secretary for the Department of War." 

"The United States will be true and faithful to their engagement." 

Such was the solemn declaration of the Father of this Country in the
infancy of this republic.  Heaven grant that his sacred promises may be
kept and his confident prediction verified.  The question is now before
us.  No sophistry can evade, no ingenuity can elude it.  Will "the United
States be true and faithful to their engagement," or false and
treacherous?  

The Cherokees present this solemn interrogatory, and we must return a
deliberate response.  It seems almost as if their case had been formed
for the purpose of determining whether it be possible to bind this nation
by its plighted faith.  

=== (page 24) ====================== 

I have already referred to our repeated and reiterated engagements by
the sages of the Revolution, in the Congress of 1785; by Washington and 
the constellation of brilliant names around him, in 1791, 1792, and 1794;
by the eider Adams and his cabinet in 1798; by Mr.  Jefferson, in four
successive treaties, in 1804, 1805, 1806, and 1807; by Mr.  Madison, in
several formed in 1816; by Mr.  Monroe, in 1817, General Jackson himself
subscribing it with his own hand as commissioner; and by another in 1819,
to which Mr.  Calhoun affixed his name, as negotiator.  All these
treaties were ratified by the Senate, and sanctioned by every department
of the Government.  

In 1794, that greatest and best of men, whose name we profess so much to
venerate, and which should be, of all others, the highest authority to
this Senate, and to the nation, delivered a speech to the chiefs and
warriors of the Cherokee nation, in which, speaking of the lands upon
Cumberland, he says: "These have been confirmed by two treaties, of
Hopewell, in 1785, and Holsten in 1791." Again-- "The treaties which have
been made cannot be altered.  The boundaries which have been mentioned
must be marked and established, so that no dispute shall happen or any
white people cross over it." 

In 1795, the Governor of Tennessee, upon which State it is now asserted
these treaties are not obligatory, wrote a letter to President
Washington, in order to "prevent infractions of them," by encroachments
upon the lands of the Indians.  And as late as 1824, the gentleman from
Tennessee, who reported this bill, [Mr.  White] gave an able and
elaborate opinion in writing, in which he strenuously asserts and
maintains their validity and the rights of the Indians.  He says "the
Cherokees are to be considered as a nation, a community having a country
distinctly marked out, and set apart for their use; that their interest
is as permanent and fixed in it, as the pledge and the faith of the
United States can make it; inasmuch as they have solemnly guarantied it
to them as a nation, without any limitation of time." With reference to
the treaty of Holsten, he says they are "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 that treaty."
And again, "they have not surrendered the power of making municipal
regulations for their own internal government." 

=== (page 25) ====================== 

But now that we, the United States, are called upon to "be true and
faithful to these engagements," it is contended that they are not
obligatory; and, in order to sustain that position, it is insisted that
the constitution gives no power to make treaties with Indian nations,
within the United States.  Although every President of the United States
and the members of his cabinet, every administration and all the great
men by whom it was surrounded and sustained, have formed and established
such Indian treaties.  

Every Senate of the United States, and I believe every member of every
Senate, have ratified and confirmed such Indian treaties.  Every House of
Representatives of the United States, and I believe every member thereof,
have affirmed and sanctioned them, by passing laws for their due
execution, paying from year to year the annuities secured by them, and
making appropriations to enable the President to hold others.  At this
very session, the Senate has ratified new treaties; and during the
present month, we have made an appropriation to enable the President to
form another, with the tribes in Indiana.  While that bill was under
discussion, an amendment was proposed, prohibiting the use of any part of
the money therein granted in secret presents to the Chiefs; and it was
insisted by the gentlemen from Tennessee, Louisiana, and Illinois,
[Messrs.  Grundy, Livingston, and Kane,] that such a proviso, merely
restricting the use of money which Congress was granting, would trench
upon the high, independent, constitutional power of the President in
negotiating treaties.  Nay, the second section of the bill now under
consideration, provides for the removal of "any tribe or nation of
Indians, now residing within the limits of any of the States or
territories, and with which the United Stars have existing treaties;" and
now we are told by the chairman that such treaties cannot exist--that
they are no treaties.  

It is in effect asserted, that every President and every Senate have been
guilty of usurpation, in extending the treaty-making power beyond its
legitimate objects: for if these contracts are not treaties, within the
true meaning of the constitution, they could be made only by the
authority of Congress. 

=== (page 26) ====================== 

But the President and Senate alone--the treaty-making power--have always
negotiated them, ratified them, and by proclamation announced them to the
nation, as the supreme law of the land.  Every State Legislature, and the
whole people, have heard these annunciations, and looked on, during all
these proceedings, in silent acquiescence.  

Even in 1798, when all the acts of the General Government, and
particularly those of the Executive, were scrutinized with the utmost
rigor, it was never suggested, even in Virginia, where the discussions
were most animated, that there had, in this respect, been any
irregularity.  But now, upon the pressure of an exigency, it is
discovered, for the first time, that all has been wrong.  The present
occasion has brought with it new and peculiar lights, by which gentlemen
now perceive what was in the minds and intentions of the framers of the
constitution better than they did themselves.  They were ignorant of
their own work.  The venerated fathers of the republic, and all the high
and honored names who have presided over its destinies, have been
involved in deep darkness, and wandered in gross error?  

I have thus, [said Mr.  S.] endeavored to present my views with respect
to the claims of the State of Georgia.  Whether we regard original
principles of international law, as applicable to the right of discovery
or the express powers conferred by the articles of confederation; or the
confirmation of pre-existing treaties, by the adoption of the
constitution; or the authority vested by that instrument in the General
Government, and the renunciation of powers by the respective States; the
invariable practice and usage of the Union, and the acts, acquiescence,
and assent of Georgia herself; it is manifest that we are bound to
perform our engagements to the Indians, and are under no incompatible and
paramount obligations to that State.  

Indian Removal Debate 1830; Peleg Sprgaue, Part 2 Page 26 

But let us now, for the sake of the argument, make the violent
supposition, that the pretensions of Georgia are well rounded, and that
the United States cannot rightfully fulfil their stipulations as against
her.  In that case the States of Alabama and Mississippi would stand on
very different ground. 

=== (page 27) ====================== 

Their claims have been mingled and blended with those of the elder
sister, as if they were precisely the same, and hers have been put
forward as the only subjects of discussion, when in truth there is a
broad line of distinction which ought to be marked and remembered.  For
the sake of distinctness and brevity I shall speak of Alabama alone.  It
is conceded on all hands, as a fundamental proposition, that the United
States are bound to fulfil their engagements to the Cherokees
specifically, except when prevented by incompatible obligations, prior in
point of time.  Now, sir, the State of Alabama, did not exist until the
year 1819, when she voluntarily came into the Union after the fifteen
treaties with this nation had been previously established and proclaimed
as the supreme law of the land.  But it is said that Alabama, was formed
from territory once belonging to Georgia, and succeeded to all her
rights.  Without stopping to examine the difficulties attending such a
supposed transmission of a right to resist treaties, it is sufficient to
say that, by the compact of 1802, Georgia ceded to the United States all
her "right, title, and claim," "to the jurisdiction and soil" of all the
territory now constituting Alabama and Mississippi.  The whole right of
Georgia, whatever it was, thus became vested in the General Government,
and so remained until 1819, during which time not less than eight of
these treaties were made.  Who could then contest their validity?  Are
our treaties valid with the nations in Florida, Arkansas, and Michigan?
Can we enter into engagements with any tribes within the boundaries of
the United States, even beyond the Rocky mountains, or any where upon
this continent?  Can we make the solemn guarantee proposed by this bill?
If so, we are legally constrained by our promises to the Indians of
Alabama, made before the existence of that State.  

But this is not all.  Still another insuperable difficulty presents
itself to her claims to legislate over and destroy the Indian nations.
The following article is a part of the fundamental law to which Alabama
owes her being, and without which she cannot exist: "The utmost good
faith shall always be observed toward 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;

=== (page 28) ====================== 

but laws rounded 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." This was originally a part of the fourth
article of the ordinance respecting the Northwestern territory; and was,
by express reference, incorporated into the first article of the compact
of 1802, and made a fundamental and perpetual condition in the act of
Congress which provided for the admission of Alabama.  

What is the answer to all this?  We have it from the gentleman from
Alabama, [Mr.  McKinley.] The compact of 1802 [says he] was
unconstitutional; Georgia could not transfer to the United States either
soil or jurisdiction.  If this be so, the first consequence is that the
dispute between that State and the General Government respecting the
ownership of the Crown lands obtained by conquest, which that compact was
supposed to have happily put to rest forever, by mutual and reciprocal
cessions, could never be settled!  In the next place: that the combined
powers of the State and of the Union cannot do that, under the
constitution, which the members individually might have done without the
constitution.  It is an attribute of complete sovereignty to be able to
convey and receive territory.  It is insisted that this attribute, as
between the States, is annihilated; although all powers not granted are
reserved to the members.  I will not say that such an effect could not be
produced by the constitution; but it is at least so extremely improbable,
that those who contend for it, in any particular instance, should be
required to show it clearly which has not been done.  

It is insisted by the gentleman that no State can be subject to the
restraining condition of the ordinance referred to, because it is
inconsistent with her constitutional equality with other members of the
Union.  That ordinance was established in July, 1787.  It declares that
"the following articles shall be considered as articles of compact
between the original States and the people and States of said territory,
and forever remain unalterable, unless by common consent." Then succeeds
an article embracing the clause before read, and which was incorporated
into the compact of 1802.

=== (page 29) ====================== 

The ordinance subsequently declares, "That the said territory, and the
States which may be formed therein, shall forever remain a part of this
confederacy." This ordinance, with all its provisions, was affirmed and
established by the adoption of the constitution, and thus that instrument
itself contemplated that all the States to be thereafter formed northwest
of the Ohio, would be thereafter formed northwest of the Ohio, should be
forever subject to those conditions, by which it is now contended no one
could ever be constitutionally restrained.  It is insisted by the
gentleman from Alabama, [Mr.  McKinley] that Georgia could not transfer
soil and jurisdiction to the United States; that the compact of 1802,
attempting to do so, was unconstitutional and void; and that the tract
of country which it was intended to convey remained a part of that State
until the year 1819.  If the gentleman's doctrine is correct it remains
so still, she having never conveyed it.  Another consequence would flow
from this doctrine, which I should exceedingly deplore; it is, sir, that
Alabama is not a member of this Union!  By the constitution no new State
can be formed or admitted into the Union within the limits of an old one,
without the consent of the latter.  Now, sir, Georgia has never consented
to the admission of Alabama, except by the transfer of soil and
jurisdiction, by virtue of the compact of 1802.  If that conveyance was
inoperative, no consent has been given.  If that compact was absolutely
void, as the gentleman contends, it is a legal nullity, and he can hold
no right under it.  Congress, too, have never given their consent, except
upon the basis of the binding efficacy of that compact, and upon the
express condition that its requisitions should be the fundamental law of
the new State.  But, says the gentleman, Congress had no power to pass
such a law.  If so, the act respecting the admission of Alabama was
unconstitutional and void, and neither created nor admitted any new
State.  The ingenious gentleman has reasoned so profoundly upon
constitutional law that he has argued himself and his colleague out of
their seats in the Senate!  Now, sir, against this I most seriously
protest; they cannot be spared; we need the aid of their talents and
experience.  

How will the gentleman escape from the consequences which I have deduced?  

=== (page 30) ====================== 

Will he contend that the compact and the law were valid.  and invalid at
the same time?  That they conferred rights, but could not impose
obligations upon his State?  Even if such an extraordinary position were
assumed, how would it affect the present question?  If he can infuse any
degree of vitality into that which was dead before its birth; if he can
make that compact efficacious, as the consent of Georgia to Alabama's
becoming a State, would it not also be effectual as her consent that the
United States should exercise jurisdiction over the territory, so far as
to make treaties with the Indian tribes?  If, then, the gentleman will
admit that Georgia assented to any thing by virtue of that compact, she
consented to the formation of these treaties, and thus they were valid by
her authority before Alabama was brought into being.  As a dernier
resort, the gentleman insists that the true construction of the language
of the ordinance gives all the right over the Indians for which his state
contends, because the latter clause requires that "laws shall, from time
to time, be made for preventing wrongs being done to them, and for
preserving peace and friendship with them." That is, laws, restraining
the whites, our own citizens, from encroaching upon the natives, and
thereby endangering the public tranquility.  If Maine or New York should
pass laws for "preventing wrongs being done to" the Canadians, "and for
preserving peace and friendship with them," would that give jurisdiction
over the British provinces?  But let us read the whole clause, the true
construction of which confers this unlimited power: "The utmost good
faith shall always be observed toward the Indians," which means that we
may violate all our engagements at pleasure; "their lands and property
shall never be taken from them without their consent;" that is, both may
be taken by violence, against their utmost resistance?  "In their
property, rights, and liberty, they shall never be invaded or disturbed,
unless in just and lawful wars, authorized by Congress." "There shall be
laws for preventing wrongs being done to them, and for preserving peace
and friendship with them;" the true construction of all which is, that a
State may make war upon them at pleasure, deprive them of their lands,
and annihilate their nation!  To such arguments are gentlemen of great
ability compelled to resort!  

=== (page 31) ====================== 

The rights of the natives, both natural and conventional, have been
strenuously denied.  What right, it is asked, have the Indians to the
lands they occupy?  I ask, in reply, what right have the English or the
French, the Spaniards, or the Russians, to the countries they inhabit?  

But it is insisted that the original claim of the natives had been
divested by the superior right of discovery.  I have already shown that
this gives no ground of claim against the discovered; that it is a mutual
understanding or conventional arrangement, entered into by the nations of
Europe, amongst themselves, to define and regulate their respective
claims as discoveries, in order to prevent interference and contests with
each other, all agreeing that the sovereign who should first find a new
country should be left without interference from them to deal with it and
its inhabitants according to his ability and his conscience.  But, we are
told, that grants from the King are the highest title, and have always
been relied upon as such.  True, as against other grantees from the
Crown, or against the Government itself; but not as to the natives.  If
such a title gives any just claim as against them, then they are bound to
yield to it; for to every right appertains a corresponding obligation.  

Were the aborigines bound to yield to such pretensions?  Suppose that,
more than two centuries ago, when in unbroken strength they held
resistless sway over this whole Western world, a royal patentee, with his
handful of followers, just landed on these shores, should have found
himself in the midst of a powerful Indian nation--the council fire is
lighted up, and sachems and warriors are assembled around it--he presents
himself, and says to them: 

"This country is no longer yours.  You must leave the forest where you
hunt, and the valleys where you live.  All the land which you can see
from the highest mountain is mine.  It has been given me by the King of
the white men across the waters.  Here is his grant--how can you resist
so fair a title?" 

If they deigned any other reply than the war-whoop, their chief might
say-- 

=== (page 32) ====================== 

"The Great Spirit, who causeth the trees to rise from the ground towards 
the heavens, and maketh the rivers to descend from the mountains to the
valleys; who created the earth itself and made both the red man and white
man to dwell thereon; gave this land to us and to our ancestors.  You say
you have a grant from your King beyond the waters; we have a grant from
the King of Kings, who reigns in heaven; by this title our fathers have
held it for uncounted generations, and by this title their sons will
defend it." 

It has been strenuously argued that the overflowing nations of Europe had
a just claim to the occupancy of some portion of the vacant lands of the
aborigines for their own subsistence.  The excessive population of China,
and of Holland, have, at this day, the same ground of claim against this
United States.  May they, therefore, drive us even from our cities and
villages, and take all our territory by force?  We permit them to come
and possess, if they submit to our laws, and pay us for the soil.  The
Indians have been more liberal, having ceded both soil and sovereignty to
hundreds of millions of acres.  The Cherokees have no more to spare; they
need the residue for themselves.  Shall they be permitted to retain it?
That is now the question.  

To avoid, as far as possible, all questionable ground, I at present
contend only that the Indians have a right to exist as a community, and
to possess some spot of earth upon which to sustain that existence.  That
spot is their native land.  If they have no claim there, they have no
right any where.  Georgia asserts that the lands belong to her--she must
and she will have them--even by violence, if other means fail.  This is a
declaration of right to drive the Cherokees from the face of the earth;
for if she is not bound to permit them to remain, no nation or people are
bound to receive them.  To that for which I now contend the Indians
possess not only a natural, but also a legal and conventional right.
These two grounds of claim have been blended and confounded.  

The rights which the United States have claimed with respect to the
territory of the aborigines have been twofold--pre- emptive and
reversionary; a right to purchase, to the exclusion of all others; and to
succeed the natives, should they voluntarily leave the country or become
extinct.  

=== (page 33) ====================== 

It will at once be perceived that this is a right to exclude others from
interference, but not to coerce the Indians.  It leaves to them the
perpetual undisturbed occupancy.  They cannot indeed transfer their
country to others, but this does not impair their title, although it may
diminish its value in the market.  It still belongs to them and their
heirs forever.  If a State should, by law, prohibit its citizens from
making sale of their lands without the assent of the Executive, would it
destroy every man's title?  Nay, the laws do now prevent conveyances to
aliens.  The right claimed is merely to exclude all others from
purchasing of the aborigines.  It will be divested of much of its
appearance of harshness toward them by recurring to its origin.  It was
the primitive agreement or mutual understanding between exploring
nations, that whichever privilege of dealing with the natives; and upon
this ground the discoverer excluded others from becoming purchasers.  He
had the right of pre-emption.  This agreement trenched not upon the title
of the aborigines; and as to its affecting the value of their lands, by
preventing competition in the purchase, there would have been no
purchaser but for the discovery.  

There is no mystery in the international law of discovery.  So far as it
relates to this subject, it is the same as if five or six persons, being
about to go in search of sugar lands in South America, should mutually
engage that they would not interfere with each other in their purchases.
Such agreement would do no wrong to the original owner.  

The reversionary claim, as it may be denominated, although in strictness
that cannot revert to another which, always belonged to the present
possessor, is the necessary consequence of the exclusion of others from
purchasing.  It is merely a right of succession of lands of the Indians
when they shall have become extinct, or have voluntarily abandoned them
by emigration; as the property of individuals sometimes escheats to the
Government for the want of heirs.  

The right of the aborigines to the perpetual and exclusive occupancy of
all lands has been always recognized and affirmed by the United States.
It was respected by Great Britain before the Revolution, as appears by
the royal proclamation of 1763, in which all persons are commanded 

=== (page 34) ====================== 

"forthwith to remove themselves" from lands, "which not having been ceded
to or purchased by us, are still reserved to the said Indians," and after
reciting that individuals had practised fraud upon the natives, forbids
private persons from making purchases, "to the end that the Indians may
be convinced of our justice," and provides that, if "the said Indians
should be inclined to dispose of the said lands, the same shall be
purchased only for us, in our name, at some public meeting or assembly of
the said Indians, to be held for that purpose." 

That right was recognized by the Confederation, as appears by the whole
tenor of their proceedings, particularly their treaties, by which they
purchased a part, and guarantied the remainder; by the report of a
committee on August, 1787, which declares that the Indians have "just
claims to all occupied by, and not purchased of, them;" and the
proclamation of Congress, in September, 1788, which has been already
referred 

That, under our present constitution, the rights of the natives, and the
relation in which they stand to the United States, are such as I have
described, is clearly manifested by the speech of President Washington to
the Senecas in 1790, from which I have already presented some extracts;
and by the following explicit and deliberate letter of Mr.  Jefferson,
written to the Secretary of War in 1791-- "I am of opinion that
Government should firmly maintain this ground; that the Indians have a
right to the occupation of their lands, independent of the States within
whose chartered lines they happen to be; that until they cede them by
treaty, or other transactions equivalent to a treaty, no act of a State
can give a right to such lands; that neither under the present
constitution, nor the ancient confederation, had any State, or persons, a
right to treat with the Indians, without the consent of the General
Government; that that consent has never been given to any treaty for the
cession of the lands in question; that the Government is determined to
exert all its energy for the patronage and protection of the rights of
the Indians, and the preservation of peace between the United States and
them; and that if any settlements are made on lands not ceded by them,
without the previous 

=== (page 35) ====================== 

consent of the United States, the Government will think itself bound, not
only to declare to the Indians that such settlements are without the
authority or protection of the United States, but to remove them also by
the public force." Also, by the intercourse law of 1790--forbidding all
encroachments by citizens of the United States, upon the "territory
belonging to any tribe or nation of Indian;" by many other statutes,
particularly that of March, 1803--by all the treaties of purchase and
cession-all the laws to carry them into effect and pay the
consideration--and all the acts for enabling the Executive to "extinguish
Indian titles." 

The gentleman from Georgia [Mr.  Forsyth] has referred to the
correspondence at Ghent to sustain his denial of rights to the Indian
tribes.  He relied upon the views of the American Commissioners, in
repelling the claims of the British.  As it is sometimes more
satisfactory to read for ourselves, than to take the construction of
others, permit me, sir, to present to you an extract from that
correspondence.  "Under this 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
upon the lands where they inhabit, or hunt, are secured to them by
boundaries defined in amicable treaties between the United States and
themselves; and when these boundaries are varied, it is also by amicable
and voluntary treaties, by which they receive from the United States
ample compensation for every right they have to the lands ceded." "Such
is the relation between them and the United States: that relation is not
now created for the first time, nor did it originate with the treaty of
Grenville." And subsequently, "the treaty of Grenville was merely
declaratory of the public law, on principles previously and universally
recognized." 

To this, sir, were subscribed the names of Adams and Gallatin, of Clay,
and Bayard, and Russell.  

The gentleman from Alabama, [Mr.  McKinley] to show that the natives had
no title to the soil, cited the case of Johnson and McIntosh, decided by
the Supreme Court of the United States, and reported in the 8th of
Wheaton. 

=== (page 36) ====================== 

To see how precisely that case sustains my positions, let me read a few
very short extracts from the opinions of the court, as delivered by Chief
Justice Marshall.  It declares that the right of the United States, or
the several States, is "subject to the Indian right of occupance." That
"the original inhabitants are the rightful occupants of the soil, with a
legal, as well as a just, claim to retain possession of and to use it
according to their own discretion." And again, "it has never been
contended that the Indian title amounted to nothing.  Their right of
possession has never been questioned." 

Georgia herself has recognized those established rights of the natives,
and the relation they bear to the General Government.  By a law passed in
1796, respecting the vacant lands within her chartered limits, she held
the following language: "The territory therein mentioned is hereby
declared to be the sole property of the State, subject only to the right
of treaty of the United States, to enable the State to purchase, under
its pre-emption right, the Indian title to the same." A most pregnant act
of legislation.  It expressly admits "the Indian title;" that the claim
of the State is only "to purchase" under its pre-emption that even this
she could not do, unless "enabled" by the United States; that the United
States had "the right of treaty" with the Indians, and that the claims of
Georgia were "subject to" that right.  

In the compact of 1802, she stipulated, by reference to an article of the
ordinance before mentioned, for the inviolability of the lands, property,
rights and liberty of the Indians, upon the territory relinquished; and
recognized their just claim to lands, in that which was retained, by the
article which binds the United States, "at their own expense," to
extinguish "the Indian title" thereto, as early as it could be done
"peaceably, and upon reasonable terms." 

The titles of the acts which I read, and several others, speak of the
lands therein disposed of, as "acquired," "obtained," from the "Creek and
Cherokee nations," by the treaties held by the United States.  

Even the act of December last contains a plenary admission that the lands
in question were never before subject to her jurisdiction.  A part of the
title is "to extend the laws of the State over" -- "the territory now
occupied by the Cherokees." 

=== (page 37) ====================== 

The sixth section expressly extends the laws of the State over the same
and the inhabitants thereof.  Sir, does not the legislation of every
State; of itself; operate upon all the country within its jurisdiction?
The laws of Georgia were not before limited to any parts of the States;
they were general; they covered the whole; and are now -- extended over
the residue!  

We have heard a great deal; in this debate, of the rights of conquest;
and are told, that it is always recognized as valid by the judicial
tribunals.  True; sir, by those of the conqueror.  How can they do
otherwise?  Suppose that Congress should now declare a war for the sole
purpose of wresting Canada from Great Britain, and should succeed; could
our own courts question this exercise of political power; and refuse to
sustain our jurisdiction over the country; however iniquitous the
acquisition?  And if in this Government, where the political sovereign is
under the restraints of the constitution; the courts cannot interfere;
how could they in Europe; where this doctrine had its origin?  There, the
legislative and political powers are unlimited.  Even in England the
Parliament is legally omnipotent; and who ever heard of a judicial court
undertaking to annul any of its enactments?  Whatever may be the
acquiescence of other nations in the exercise of power by a conqueror; it
is no ground of just claim as against the conquered.  They, surely, are
not bound to submit; if new means of resistance can be found.  To give to
conquest--to mere force--the name of right; is to sanction all the
enormities of avarice and ambition.  Alexander and Bonaparte are
justified!  Britain has done no wrong in sweeping India with the hand of
rapine, and holding fifty millions of people in thraldom!  All the
cruelties of the Spaniards in South America; the crimes of Pizarro and
Cortez; tracking the fugitive natives in terror and dismay with blood
hounds, to the caves of the mountains; and stretching their wretched
monarch upon burning coals to extort from him the secret of his
treasures; are sanctified by the name of right?  This right of conquest;
gentlemen contend; is the legitimate offspring of the right of discovery.
Sir; the pirates on the coast of Barbary and Barataria exercise both.
They find a ship alone on the ocean; this is discovery.

=== (page 38) ====================== 

They capture her, and murder or enslave the crew; this is conquest.  Both
these rights are thus combined and consummated, and their validity will
not, I presume, be questioned either by the courts of Barataria, or other
bands of similar conquerors.  

But even this miserable argument of conquest is not applicable to the
Cherokees.  They were not subjugated.  The Southern Indians had sixteen
thousand warriors with arms in their hands.  They were powerful; their
trade was war; they did not solicit peace.  We sought for it, as appears
by the resolutions of Congress, of May, 1783, and March, 1785.  We
obtained the treaty of Hopewell, in which gentlemen find the expressions,
the "United States give peace" to the Indians, and "allot boundaries;"
and, by a philological criticism upon the English terms which we used,
they logically deduce the rights of conquest!  What did the unlettered
Indian understand by those expressions, but that there was to be an end
of war, and that his territory was to be sacred?  The treaty contains
many reciprocal stipulations of the "contracting parties." Will it still
be contended that we are not bound by them, because the other party was
conquered--in other words, because we were the strongest?  If the United
States made terms of peace, should they not abide by them?  If a besieged
town capitulates, are not the articles of capitulation obligatory?  When
Bonaparte dictated treaties of peace in the capitals of the nations which
he had overrun, was he not morally bound to observe them?  They, indeed,
might complain that the contract was made by constraint, when they were
not free agents, but who ever heard of the stronger party claiming to be
absolved from his engagements, because the other was subject to his
coercion?  

It has been repeatedly asked, why not leave the Indians to the
legislation of the States?  I answer, because they protest against it,
and they, alone, have the right to judge.  They demand of us the
protection which we solemnly promised.  

Much has been said of their being untutored savages, as if that could
dissolve our treaties!  No one pretends that they are less cultivated now
than when those treaties were made. 

=== (page 39) ====================== 

Indeed, it is certain that they have greatly advanced in civilization; we
see it in the very proofs introduced by the gentleman from Georgia to
show their barbarism.  He produced to the Senate a printed code of
Cherokee laws, and a newspaper issued from a Cherokee press!  Is there
another instance of such production from any Indian nation?  I was
surprised that, with all his scrutiny, he could find no more remnants of
savage customs.  I shall not dwell upon his selections from their laws.
The first was, that, if a horse should be stolen, and the owner, finding
the thief in possession, should immediately kill him, in the excess of
passion, it should rest upon his own conscience.  It is to be observed
that the person slain must have been guilty; and for such an offence life
is now taken by the laws of England.  But this provision, inserted in the
Cherokee code more than twenty years ago, has yielded to further light,
and been since repealed.  Time will not permit me to dwell upon their
advances in the arts of civilized life.  It is known to have been great.
They till the ground, manufacture for themselves, have workshops, a
printing press, schools, churches, and a regularly organized Government.
Indeed, the gentleman from Tennessee himself told us, that some
individuals of that nation were qualified for a seat in this august
assembly.  

What danger, it is asked, have the Indians to apprehend from the laws of
the State?  What danger?  Is it not here avowed that their presence is a
nuisance from which Georgia wishes to be relieved?  Has not her
Legislature declared that she is determined to have their lands at all
hazards, even by violence, in the last resort?  And, if left to her
unrestrained power, can it be doubted that she will find the means of
carrying that determination into effect?  If the laws heretofore enacted
are not sufficient, may not others be resorted to?  Let us, for a moment,
look at the measure already adopted, and see if they have not some
adaption to the accomplishment of her wishes.  

By the ninth section of the act of 1828, no Indian in the Creek or
Cherokee nations can be a party of a witness in any suit to which a white
man may be a party.  It is said that this has been repealed by the
statute of 1829.  I think otherwise.  The latter contains no repealing
clause, nor any incompatible provisions.

=== (page 40) ====================== 

Both may well stand together, and both would be enforced according to the
usual construction of statutes in pari materia.  It is true, that a part
of the title of the act is, to repeal that ninth section of the former.
This is easily accounted for.  The act, as first reported by the
committee, probably contained a repealing clause, which was stricken out
by the more zealous majority; the original title remaining unchanged.  

But suppose that only the law of 1829 is now in force.  What is to be its
effect?  All the laws, usages, and customs of the Cherokees are
abrogated, and severe punishments denounced against those who shall
presume to act under them.  Their Government is dissolved--their
political existence is at an end--their nation is destroyed--it is
resolved into its original elements.  We know that their lands are not
holden by individual ownership; the title is in the nation.  To
annihilate the tribe, therefore, as a political community, is to destroy
the owner; and the State is then to take the whole by her claims of
succession.  By this statute, no Cherokees, or descendant of a Cherokee,
can be a witness against any white man, who does not reside within the
"nation." This devotes their property to the cupidity of their neighbors;
it leaves them exposed to every outrage, which lawless passions can
inflict.  Even robbery and murder may be committed with impunity, at
noonday, if not in the presence of such whites as will become prosecutors
or witnesses.  

This, the gentleman from Georgia asserts, creates no new disability; that
Indians are not competent to testify, by the common law, either in
England or in this country.  That I deny.  They are good witnesses in
both, and have been so, without question, ever since the case of the
Gentoo, in the time of Lord Mansfield.  Several were recently admitted by
the courts of New York, in a very important question of title to real
estate near the falls of Niagara, and I have myself seen a person
convicted of larceny, to a large amount, in the Supreme Court of
Massachusetts, upon the testimony of an Indian.  

But the gentleman assigned, as a reason for his assertion, that a belief
in a future state of rewards and punishments was essential to their
admissibility as witnesses.  

=== (page 41) ====================== 

True, sir, and so it is with respect to all others.  The objection is as
valid against a white as a red man.  If this act creates no new
disability, why was it passed?  Why not leave them to the provisions of
the common law?  But, sir, we learn from an intelligent missionary, that
there are a thousand members of Christian churches.  These, and all other
believers are excluded.  Even those who are so distinguished for their
knowledge, integrity, and ability, that the honorable Chairman would be
willing himself to be represented by them in the Congress of the United
States, are not permitted to testify in a court of justice.  

Under these enactments, the Cherokees are aliens in their native land;
trespassers upon their own soil; outlaws in the bosom of their own
nation!  

By why should I dwell upon the laws already passed, when the same power
can, at will, produce others to effectuate their avowed determination?
Who will pretend that the Indians can live under the legislation of the
State?  The head of the bureau of Indian affairs, in a communication
transmitted to Congress by the Secretary of War, declares that it will
"seal their destruction, as admitted by their chiefs;" and the honorable
chairman has frankly declared in this debate, that it will reduce them to
the last degree of wretchedness.  His words were: "You cannot make a full
blooded Indian more miserable" than by such subjection; and, in his
written opinion of 1824, he emphatically says, if "the protection of the
United States is withdrawn," "the Cherokee nation cannot exist twelve
months." 

The question now proposed by this amendment is, shall that protection be
withdrawn; and the Indians be compelled to leave their country, under the
penalty of certain destruction if they remain?  

The interrogatory has been often repeated, why should not Georgia extend
her laws over the natives as well as other States?  

Again, sir, I reply--our treaties--our treaties.  The Indians object, and
the United States have solemnly promised, to interpose at their request.
In no other instances have they opposed State legislation, and demanded
our interposition.  This is a sufficient answer.  

=== (page 42) ====================== 

But this topic has been so much urged, and the effort has been so great
to find shelter under the precedents of other States, that I will bestow
upon them a moment's attention.  That principally relied upon, and the
only one specified, is a law of New York passed four or five years ago.
The occasion was this.  In one of the little reduced tribes, within that
State, a female had been executed as a witch.  The executioner was
indicted in the State court before one judge and convicted.  The question
of jurisdiction was carried to the Superior Court, who never came to a
decision, but advised a pardoning act; whereupon this law was passed,
which punishes certain high crimes committed within the tribe.  Its sole
object was the protection of the Indians, and it seemed to have been by
their consent.  They have never objected, much less claimed our
interposition.  Does this bear any analogy to the case of Georgia and the
Cherokees?  When another tribe, the Oneidas, formed a constitution or
Government similar to that of the Cherokees, did New York interfere to
destroy it and dissolve the nation?  Far otherwise; they protected them
in its enjoyment.  And such has been the general character of the
legislation of other States.  I shall not go back to the early days of
colonial vassalage, although it is surprising that so little color of
precedent is to be found, even when the weakness of infancy was
struggling for existence against the power of the savages.  I speak of
the State, since they became such, under the confederation, or the
Federal Constitution; and say that their general legislation has
been--not over the Indians, and acting upon the individuals within the
territory of their tribe; but protecting and preserving them as a
distinct community-- operating upon the whites, and restraining them from
inflicting wrongs and injuries.  The legislation of Georgia has thrown
over them a net, which binds every limb in fetters, but is no shield of
defence against assaults; whilst that of other States has erected around
them a wall of defence, guarding them against encroachments.  

This bill [said Mr.  S.] provides for the removal of the Indians to
distant regions, beyond the Mississippi; and it is proposed to place no
less than half a million of dollars in the hands of the Secretary of War
for that purpose.  

=== (page 43) ====================== 

The amendment, now under consideration, declares that they shall be
protected, in the enjoyment of their rights, until they shall choose to
remove.  The necessity for such a provision is apparent.  Without it,
they have no option.  Without it, this bill will add to the pressure of
the torrent that is sweeping them away.  

It is now known that acts for holding Indian treaties have been used as
instruments of coercion!  When our commissioners have met the chiefs in
council to obtain farther acquisitions of territory, have they not
sometimes asked only, what will you reserve?  And when the answer has
been, we have no lands to spare--we will cede nothing; this question is
repeated-what will you reserve?  Congress have passed a law for the
purpose of obtaining a portion of your soil--the United States are
strong--their arms now sleep in peace; beware how you arouse them from
their slumbers!  

Not only has terror been inspired, but other means have been resorted to,
to cause the women to influence their husbands; the children to beseech
their parents; the warriors to urge the chiefs; until their firmness is
overcome.  It is related of a venerable chief, that, yielding at last to
this irresistible pressure, he signed the fatal parchment in tears;
declaring at the time that it was the death warrant of his nation.  

Apprehending that our object is to obtain further cessions, the Indians
have met us in council with fear and trembling.  In one instance, five or
six tribes being assembled, our commissioners announced to them that our
only desire was to establish and preserve peace among themselves; that we
asked for no lands; they instantly rent the air with acclamations of joy.
No difficulties, no delays intervened--the treaties were accomplished at
once.  

Is it uncharitable to suppose that agents, to be appointed under the
direction of those who are now concerned in our Indian affairs, may
resort to force or terror?  Sir, the officer now at the head of the
Indian Bureau, in his official report of a treaty of cession, made by him
with the Creeks, states the fact, that in two successive councils he met
only a firm denial; and in the third, he says, one individual being most
prominent in his opposition, it was not until he "broke him upon the
spot" that the treaty was obtained!

=== (page 44) ====================== 

Yes, sir, that officer avows that he "broke" one of the prominent chiefs
in their own council, as the only means of accomplishing his purposes.
And in an official communication sent to us by the Secretary of War at
the commencement of this session, the same officer recommends that the
Government should send an "armed force" to the Cherokee country, to
further the objects of this bill--the removal of the natives.  He says,
indeed, that he would make a solemn declaration that the military were
not to be used to compel them to leave their country; but only to give
security to those that were willing to go.  And would such a declaration,
even if made, do away the effect of the presence of our bayonets?  What
is the avowed purpose?  To protect, against their own Government and
people, the individuals who may choose to emigrate; but not to afford any
aid or countenance to those that may choose to remain.  The chiefs may
inquire of Georgia, if she shall attempt to force her laws upon us?  The
reply must be, Oh no, the President has decided that she has a right to
govern you; and if you should resist, the United States are bound to
assist her in the execution of her laws against all opposition.  When the
British minister remonstrated against the Emperor Alexander's annexing a
part of Poland to his dominions, he replied: I have three hundred
thousand soldiers in that country.  The argument was conclusive.  If the
Cherokees should hesitate, they might in significant silence, be pointed
to our glittering bayonets!  

It is recommended to send an armed force to enable the Cherokees to
deliberate freely.  When the Roman orator appeared in defence of Milo, he
found the forum surrounded by an armed force, accompanied, no doubt, by
the declaration that it was only to preserve tranquility.  But even the
tongue of Cicero was palsied by the formidable array, and his friend and
client was abandoned to his fate.  We know, sir, how the deliberations of
the Parliament of Great Britain, and the National Convention of France,
have been aided by the presence of an armed force; and history abounds
with similar examples.  

I confess, sir, that I cannot but indulge fears of the use which may be
made by the War Department, of the half million of dollars, to be
appropriated by this bill.

=== (page 45) ====================== 

We do know, that, in making Indian treaties, there have been instances of
valuable reservations of lands, and large sums of money being secretly
given to individual chiefs, by confidential arrangements, to induce them
to yield to our wishes, and betray the confidence reposed in them by
their nation.  Is it uncharitable to apprehend that such things may
happen under the directions of the present Secretary of War?  Towards
that high officer I have no feeling of unkindness.  I seek no imputation
upon his motives; but his official acts I am bound, by the duties of my
station, to examine.  Look at the instructions given by him in May last
to General Carroll, who ,as sent as an agent of the Government to induce
the Cherokees to a removal.  They express throughout much solicitude for
the welfare of the Indians, and profess to consult their best interests.
But I am constrained to look at the acts to be done -- the course of
conduct prescribed.  He is directed not to meet the Cherokees in "General
Council" for "the consequence would be, what it has been, a firm refusal
to acquiesce;" but to "appeal to the chiefs and influential men-not
together, but apart, at their own houses; and to make offers to them of
extensive reservations in fee simple, and other rewards" to obtain "their
acquiescence." He is further told, "the more careful you are to secure
from even the chiefs the official character you bear, the better" -- and
again: "go to them not as a negotiator, but friend." "Open to each a view
of his danger." Again: "enlarge on their comparative degradation as a
people, and the total impossibility of their ever attaining to higher
privileges, while they retain their present relations to a people who
seek to get rid of them: -- that their laws "will be superseded and
trodden under foot." Again: "enlarge upon the advantage of their
condition in the West -- there the General Government would protect
them -- improve them by instruction." They would become our equals in
privileges, civil and religious, and that "by refusing" to remove,
"they must, necessarily, entail destruction on their race." 

I cannot but remark the parallel between the course here prescribed and
that which expelled our first parents from Paradise. 

=== (page 46) ====================== 

When the Arch Tempter sought their removal, he assailed them "not
together," lest their joint "council" should have baffled his arts; but
he found feebler woman "apart" from her husband, deprived of the aid of
her natural adviser, and carefully concealing his "official character" of
Satanic majesty; assuming the guise of a "friend" -- a kind instructor;
he told her -- pursue the course which I advise, and the evils which have
been predicted will not follow!  -- "ye shall not surely die" -- but you
shall be enlightened and elevated -- "your eyes shall be opened, and ye
shall be as gods, knowing good and evil." She listened and yielded -- 

"Earth felt the wound, and nature, from her sent "Sighing through all her
works, gave signs of woe "That all was lost." 

She was made the instrument of seducing the man also; and both were
driven from the garden of Eden, where the Creator had placed them, to the
unsubdued wilderness of the world -- and a flaming sword forever barred
their return.  

The adoption of such measures is, in the language of the military
Secretary, to "move upon them in the line of their prejudices." And upon
whom is it that we thus move?  Those whom we have most solemnly promised
to protect as faithful guardians; whom we have called brothers; whom we
have taught to look up to the President as their great father.  Yes, we
have endeavored to obtain over them the influence of a parent; but do we
perform towards them the duties of that sacred relation?  

It is said we must resort to such measure; they are unavoidable.  The
plea of state necessity is advanced.  And is this great country, with
peace in all its borders, now controlled by an irresistible power, that
knows no rule and consults no law?  Does this measure wear the garb of
state necessity?  That, sir, is a high-handed tyrant-- not a
smooth-tongued seducer.  It is a lion, seizing its prey with open and
resistless strength--not a serpent winding its sinuous way in secret to
its victim.  

Without the adoption of this amendment, the Cherokees have no choice; but
between the miseries of emigration, and destruction where they are, it is
contended that it is for their best interest to remove.  Leave that, sir,
to their own decision.  

=== (page 47) ====================== 

Our judgment may be too much guided by our own convenience.  We undertook
to judge for the Seminoles in Florida.  We asked for their fertile lands;
they objected, asserting that the residue would not support existence.
We persisted; and found means at last to obtain a reluctant cession.
They departed in the deepest sorrow from their homes of comfort and
plenty, to encounter want and misery upon a barren waste.  Nineteen-
twentieths of the territory which we left to them consisted of sands
where no verdure quickened, and of swamps upon which human life could
not be sustained.  The dreary description officially given by Governor
Duval can hardly be exceeded.  The consequence was -- what the Seminoles
foresaw -- want, suffering, and starvation.  The Government was forthwith
compelled to give twenty thousand dollars for food to preserve life, and
to retrocede a portion of their territory.  

Whither are the Cherokees to go?  What are the benefits of the What
system has been matured for their security?  What laws for their
government?  These questions are answered only by gilded promises in
general terms; they are to become enlightened and civilized husbandmen.  

They now live by the cultivation of the soil, and the mechanic arts.  It
is proposed to send them from their cotton fields, their farms, and their
gardens, to a distant and an unsubdued wilderness--to make them tillers
of the earth; to remove them from their looms, their workshops, their
printing press, their schools, and churches, near the white settlements,
in frowning forest, surrounded with naked savages--that they may become
enlightened and civilized!  We have pledged to them our protection; and,
instead of shielding them where they now are, within our reach, under our
own arm, we sent these natives of a southern clime to northern regions,
amongst fierce and warlike barbarians.  And what security do we propose
to them?  A new guarantee!!  Who can look an Indian in the face, and say
to him, we and our fathers, for more than forty years, have made to you
the most solemn promises; we now violate and trample upon them all; but
offer you, in their stead, another guarantee!  

Will they be in no danger of attack, from the primitive inhabitants of
the regions to which they emigrate?  How can it be otherwise? 

=== (page 48) ====================== 

The official documents show us the fact, that some of the few who have
already gone, were involved in conflicts with the native tribes, and
compelled to a second removal.  

How are they to subsist?  Has not that country now, as great an Indian
population as it can sustain?  What has become of the original occupants?
Have we not already caused accessions to their numbers, and been
compressing them more and more?  Is not the consequence inevitable, that
some must be stinted in the means of subsistence?  Here, too, we have the
light of experience.  By an official communication from Governor Clark,
the superintendent of Indian affairs, we learn that the most powerful
tribes, west of the Mississippi, are, every year, so distressed by
famine, that many die for want of food.  The scenes of their suffering
are hardly exceeded by the sieges of Jerusalem and Samaria.  There might
be seen the miserable mother, in all the tortures which hunger can
inflict, giving her last morsel for the sustenance of her child, and then
fainting, sinking, and actually dying of starvation!  And the orphan!  no
one can spare it food--it is put alive into the grave of the parent,
which thus closes over the quick and the dead!  And this not in a
solitary instance only, but repeatedly and frequently.  "The living child
is often buried with the dead mother."* 

I am aware [said Mr.  S.] that their white neighbors desire the absence
of the Indians; and if they can find safety and subsistence beyond the
Mississippi, I should rejoice exceedingly at their removal, because it
would relieve the States of their presence.  I would do much to effect a
consummation so devoutly to be wished.  But let it be by their own free 

------------------------ 

* Extract from an official report of Governor Clark, Superintendent of
Indian Affairs, dated March 1, 1826.  

"The condition of many tribes west of the Mississippi is the most
pitiable that can be imagined.  During several seasons, in every year,
they are distressed by famine, in which many die for want of food, and,
during which, the living child is often buried with the dead mother,
because no one can spare it as much food as would sustain it through its
helpless infancy.  This description applies to Sioux, Osages, and many
others, but I mention those because they are powerful tribes, and live
near our borders, and my official station enables me to know the exact
truth.  It is in vain to talk to people in this condition about learning
and religion." choice, unawed by fear, unseduced by bribes.

=== (page 49) ====================== 

Let us not compel them, by withdrawing the protection which we have
pledged.  Theirs must be the pain of departure, and the hazard of the
change.  They are men, and have the feelings and attachments of men; and
if all the ties which bind them to their country and their homes are to
be rent asunder, let it be by their own free hand.  If they are to leave
forever the streams in which they have drank, and the trees under which
they have reclined; if the fires are never more to be lighted up in the
council house of their chiefs, and must be quenched forever upon the
domestic hearth, by the tears of the inmates, who have there joined the
nuptial feast, and the funeral wail -- if they are to look for the last
time upon the land of their birth, which drank up the blood of their
fathers, shed in its defence -- and is mingled with the sacred dust of
children and friends -- to turn their aching vision to distant regions
enveloped in darkness and surrounded by dangers -- let it be by their own
free choice, not by the coercion or a withdrawal of the protection of our
plighted faith.  They can best appreciate the dangers and difficulties
which beset their path.  It is their fate which is impending; and it is
their right to judge, while we have no warrant to falsify our promise.  

It is said that their existence cannot be preserved; that it is the doom
of Providence that they must perish.  So, indeed, must we all; but let it
be in the course of nature, not by the hand of violence.  If, in truth,
they are now in the decrepitude of age, let us permit them to live out
all their days, and die in peace; not bring down their grey hairs in
blood to a foreign grave.  

I know, sir, to what I expose myself.  To feel any solicitude for the
fate of the Indians may be ridiculed as false philanthropy and morbid
sensibility.  Others may boldly say, "their blood be upon us;" and sneer
at scruples, as a weakness unbecoming the stern character of a
politician.  If, sir, in order to become such, it be necessary to divest
the mind of the principles of good faith and moral obligation, and harden
the heart against every touch of humanity, I confess that I am not, and,
by the blessing of Heaven, will never be -- a politician.  

=== (page 50) ====================== 

Sir, we cannot wholly silence the monitor within.  It may not be heard
amidst the clashings of the arena, in the tempest and convulsions of
political contentions; but its "still small voice" will speak to us --
when we meditate alone at eventide -- in the silent watches of the night
-- when we lie down and when we rise up from a solitary pillow -- and, in
that dread hour, when, "not what we have done for ourselves, but what we
have done for others" will be our joy and our strength; when -- to have
secured, even to the poor and despised Indian a spot of earth upon which
to rest his aching head -- to have given him but a cup of a cold water,
in charity, will be a greater treasure than to have been the conquerors
of kingdoms, and lived in luxury upon their spoils.  

 
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