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Ireaty-nmking power, and oil this
rests all the arguments used here, a
gninst the right of the States to le
gislate for and make contracts with,
the Indians. Now, Sir, I assert ex
plicitly, that the power to make a
treaty with Indians within a State, is
not delegated to the U. States; and I
assert further, that the power of mak
ing contracts with Indians is not
prohibited to the States. The right
of the U. States to contract with, or
legislate for, the Indians, beyond the
States, is not denied, it is a necessa
ry consequence of the controlling
power of the Government over the
’Territories of the Union. That the
President has made with the advice
and consent of the Senate, various
contracts with Indians, and called
them Treaties, is not to be denied.
That various contracts have been
made with Indians, by States and in
dividuals, under the superintendence
of the U. States, is certain—they have
been submitted, too, to the Senate,
voted upon ns, and are called, trea
ties, What I assert is, that these in
•truineuts are not technically treat
ies, supreme laws of the land, supe
rior iu obligation to State Constitu
tions and State Laws. Can it be be
lieved, Mr. President, that the
stern jealousy of the State Govern
ments gave to the U. States the pow
er to use a miserable fragment of the
population ol a State, to extend, in
delicately, their authority, and nar
row that of the State Government?
The words of the Constitution must
be, indeed, clear, to reconcile us to
this absurd belief. The 10th section
<jf the Ist art. of the Constitution
proves that the Indian contracts
Were not in the contemplation of the
Convention, when the treaty making
power was discussed. By the 7th
iucie, uiieauy quuieu, it is snown
that a distinction is made between
foreign nations, States, and Indian
tribes. Indian tribes are not, in the
terms of the Constitution, foreign
nations or States. The Constituti
on gives the President and Senate
the power to make treaties—the pro
hibition to the States of the exercise
of this power, covers, necessarily
the whole power granted. Let us
see what this prohibition is. It is
divided into two classes. “No State
•hull enter into any treaty, alliance,
or confederation.” This prohibition
is absolute —treaties, alliance, and
Confederations if made, must be
made by the U. Siates. The other
prohibition is constitutional: “i\o
State shall, without the consent of
Congress, enter into any agreement
or compact with another State or
with a foreign power.” A contract
made between the U. States and in
dividuals or corporations, is not a
treaty a compact by State with State,
or by the U. States with a State, is
not a treaty. How, then, can a con
tract made with a petty dependent
tribe of half starved Indians, be pro
perly dignified with the name, and
clrt'.m the imposing character of a
treaty? Now, Sir, if a contract with
an Indian tribe is not a treaty, alli
ance, or confederation, hut is a com
pact or agreement, the StiiteGovern
ments can make them at their pleas
ure, w ithout the consent of Congress
—that consent is required only for
agreements or compacts made’ with
another State, or with a foreign Go
vernment. This is no trifling verbal
criticism; important consequences
are deduced from this abuse of the
woijd treaty. Indinn contracts made
with Creeks and Cherokces by the
U. States, to fulfill their obligations
ta Georgia, under the compact of
1802, under the false title of treaties,
have been plead in bar of the rights
oft he State under that compact, and
asserted to be of superior obligation,
noj to the compact only, but to the
State Constitution and the State laws.
As. usual, when error is to be impos
ed upon us for truth, the magic name
of Washington lias been used. The
venerable weight of that great name,
is of powerful influence. He made
treaties with Indians—lie consulted
the Senate—he ratified treaties so
lemnly negotiated—he performed
the obligations of national faith.
Such are the general assertions made
1 / the honoiable Senator. Will he
allow us any treaty made by Wash
ington, with Indians living altogeth
er within the limits of a State? Can
lie show us an instance of an inter
fergnee by Gen. Washington, in the
management of the Indians in any
ofthe old States, either to prevent
the formation of contracts by State 1
authority, or the punishment of In-
- i
iials? I will not suffer the cause of i
the State to rest upon the failure to
produce these necessary proofs of the
right to use this great name to our
prejudice. I have before me satis
factory proof that Gen. Washington
thought, as we think, that the man
agement of Indian affairs was a mat
ter of discretion. Contracts or le
gislation, purchase or coercion, were
equally at the pleasure of the United
States, and one or the other be a
dopted, as policy and justice should
require, in laying before the Sen
ate of the U. States, on the 25th of
May, 1789, the Indian contracts,
made by order of the old Congress
Gen. Washington sent with them a
report from the Secretary of War,
General Knox, of course approved
by him. This report contains these
sentences: “That it inay be proper
to observe, that the Indians are ten
acious of their lands and generally
do not relinquish them, excepting on
the principle of a specific considera
tion expressly given for the purchase
of the same. That the practice of
the late English Colonies and Gov
ernment, in puschasing the Indian
claims, Ims finally established the
habit in this respect, so that it can
not be violated but with difficulty,
and at an expense greatly exceeding
the value of the object.”—(Executive
Journal, pp. I, 2.) This is not the
langurge of a Chief Magistrate who
felt that treaties only could be made
with Indians. It is the language of
a person who recommends contracts
as the best of several modes of effect
ing an object—best, because the
cheapest, and conformable to the
habits of the people of whom he
speaks—habits not to he violated
without difficulty, and at an expense
greatly exceeding the value of the ob
ject. The Senate wiil perceive that
the doctrines expressed at Albany, in
1754, which I have quoted, are ad
vanced by Geo. Knox. The opin
ions of the two periods of time are
the same. Purchase from the In
dians, not because it is the only or
thejust inode of managing them, but
as the cheapest and most convenient.
It is not in this body tlmt it is ne
cessary to pursue this inquiry. The
Senate have decided that contracts
made with Indians (on the treaty
sent last.year from New York) with
in a State, for their lands, were not
such instruments as required the ac
tion of the Senate. The contract
sent for a ratification as a treaty, was
returned to the President, neither ra
tified nor rejected. Within a few
months, the Governor of New York
has, under a law of the State, called
together the Oneidas, and made a
treaty with them, as it is called, in
open day, and utterly disregrading
the pretentious of the U. States un
der the treaty-making power, and
the provisions of the laws regulating
intercourse with Indians. The In
dians not in the States are reached
by the legislation of the U. States :
various provisions are apblicublc to
them. The Supremo Court of the
U. States Ims pronounced upon the
condition of the Indians and the In
dian lands—the Indians are subject
to the U. States or the States—the
Indian lands owned in fee-simple by
the Government of the U. States, or
by State Governments. Thcdepen
dcnce of the Indians was asserted
and maintained in our diplomatic cor
respondence at Ghent. By the
judgment of all the authorities of the
country, according to all law and all
usage, the Indians are in the condi
tion of the perpetual inhabitants des
cribed by Vnttel as sometimes uni
ted to a social system without enjoy
ing all its advantages—partaking on
ly of those given by law or custom —
the sovereign having always the
power to improve that condition, as
time and circumstances may permit.
The State of Georgia, ufter a fair
investigation of her position, was
confident that, never having surren
dered-to the U. States her power o
ver the Indians within her eminent
domain, that the exercise of that
power not being in any manner pro
hibited to her by the Cotstitution of
the U. States, proceeded to follow
the example of the other States; and
the act of 1828 was passed subject
ing, after the 30th June, 1830, all
the Indians in the State to the regu
lar opperation of the State laws.
We were not permitted, unmolested,
to follow in the footsteps of N. York
or Maine. What was not censured
in either, was in us a crime. The
•lodgements of Heaven were threat-,
entfd for our crying sins. We are
slioald tve persist, a ‘
tone of moral feeling will be roused i
that will make Geoigia tremble. :
Little does the Senator know the
character of the State. It is not
made by such frail materials. We
tremble not at the approach of dan
ger. Empty sounds do not affect
our nerves. Why should wc trem
ble, Sir ? What can be anticipated,
that we have uot already endured?
Eulsehoodf Ossa and Fclion have
been piled upon us. Calumny ? It
has been rolled over us in volumes
black as the smoke that rises from
the pit of Acheron. Threats of the
force of the U. States? The bayo
nits of the regular army have been
flashed in our faces, and pointed at
our thronts. We have endured all,
without shrinking, and with no other
emotion than contempt for our cal
umniators, and pity for the weakness
<>f those who menaced, without the
cotrage or the power to exceutc their
idle threats.
Responsible to no earthly tribunal
for the exercise of her sovereign au
thority, Georgia is not to be questi
oned in this body, composed of the
Representative* of the States, for
the wisdom, the justice, or equity of
her laws. 1 have heretofore chal
lenged a comparison of our Indian
legislation with that of any other
State. This challenge has not been
accepted. I urn under no obligation
to join issue with the Senator from
New Jersey, who chooses to com
plain of our act, as oppressive to his
favorite Clicrokees. Asa mark of
my respect, I will however, endeav
or to correct his errors of misappre
hension and of fact. The act of 1828
having been intended merely to give
fair warning to the Cherokces, and
to the U. States, of the determination
of the State, its provisions were not
carefully enmesdereft. as a session of
the Legislature was to intervene be
fore it could take effect. In 1829,
it being apparent that some, if not all,
the Cherokces in the State, would
remain, at least for a time after June,
1830, it was necessary to make ma
tured and permanent provision for
governing and protecting them.
The law of 1829 was adopted: it
puts them in every respect, save one,
on the footing of white persons, en
titled to all the benefits, aud subject
to all the penalties of the civil and
criminal laws. The laws arid ordi
nances of the Cherokee tribe are ne
cessarily annulled. This annull
ment, the learned Senator calls, by
a siiu„,r<i ,w , voi-.sioo of t lie word, nil
outlawry of the Cherokces. The
substitution ol bad for good laws, is
certainly censurable; but, I do not
understand the Senator as pronounc
ing judgment of condemnation upon
our code. We enjoy a comfortable
state of society under it. Our friends
from the North and East—from Jer
sey too, find protection under it, for
their persons and their property —
grow rich and enjoy themselves, al
though outlawed like the Cherokces.
The gentleman complains that it is
in Georgia, an offence punishable by
imprisonment in the penilentiory for
any person to prevent, by threats,
menaces, or other means, or endea
vor to prevent, any Cherrokee In
dian from emigrating or enrolling as
an emigrant; and an offence punish
able in like manner, if any person
shall deter, or offer to deter, any In
dian, head-man, chief, or warrior of
said nation, from selling or ceding
to the U. States, for the use of Geor
gia, the whole or any part of their
land; or prevent, or offer to prevent
any such persons from meeting in
council, <Scc any commissioner of the
U. States for any purpose whatsoever.
Now, sir, this is net so* no such
crime is known to the law of Geor
gia. To fulfill their compact of
1802, the U. States, by act of Con
gress, offered to the Cherokees in
Georgia inducements to emigrate.
Among others, payment for improve
ments on the land occupied by them
was (aoniised to all who enrolled
their names, and commissioners were
appointed to fix a value upon those
improvements. The Cherokee go
vernment having forbidden, under
the penalty of death, any Indian
from selling land to the U. States,
and ordered a confiscation of the
property of those who should enrol
themselves for emigration, the act
of Georgia was intended to counter
act those provisions; to secure to
the head men the right to meet the
Commissioners of the U. States
whenever they think proper, and to
secure to the individual Indians the
t right to consult their own will; the
right ia hereut to every freemaD, ol
choosing the place of his residence,
and changing it at its pleasure. The
sections of the act of which the Sator
complained as offensive, are in these
words t
Sec. 8. And be it further enacted,
That it shall not be lawful for any
person, or body of persons-, by arbi
trary power, or by virtue of any pre
tended rule, ordinance, law, or cus
tom, of said Cherokee nation, to pre
vent, by threats, menaces, or other
means, to endeavor to prevent any
Indian of said nation, residing with
in the chartered limits of this State,
from enrolling, or removing as an
emigrant, or actually emigrating, or
removing from said nation; nor shall
it be lawful for any person or body of
persons, by arbitrary power or by
virtue of any pretended rule, ordi
nance}, law, or custom, of said nation,
to punish in any manner, or to mo
lest, cither the person or property,
or to abridge the lights or privileges
of any Indian for enrolling his or her
name us an emigrant, or for emigrat
ing, or intending to emigrate from
said nation.
“Sec. 9. And be it further enacted,
That any person or body of persons
offending against the provisions of
the foregoing section, shall be guilty
of a high misdemeanor, subject to in
dictment, and, on conviction, shall
be punsshed by confinement in the
common gaol of any county of this
State, or by confinement at hard la
bor in (he penitentiary, for a term
not exceeding four years, at the dis
cretion of court.
“Sec. 10. And be it Jurther enacted,
That it shall not be lawful for any
person or body of persons, by arbi
trary power, or under color of any
pretended rule, ordinance law or
custom, of said nation, to prevent, or
offer to prevent or deter any Indian,
bead man, chief, or warrior, of said
nation, residing within the chartered
limits of this State, from selling or
ceding to the U. States, for the use of
Georgia, the whole or any part of
said territory, or to prevent or ofter
to prevent any Indian, head man,
chief, or warrior, of said nation, re
siding as aforesaid, from meeting in
council or treaty any commissioner
commissioners on the part of the
U. States, for any purpose whatever.
“Sec. 11. And be it further enacted,
Tlvat any person or body of persons
offending against the provisions of
the foregoing section, shall be guilty
of a high misdemeanor, subject to in
dictment, and, on conviction shall be
confined at Jinrc] labor in tbo peniten
tiary, for not less than four, nor
longer than six years, at the discre
tion of the court.”
With due deference to the gentle
man, I must he permitted to say,
that he gives colour to his complaint
of this part of our act, by omitting
in his quotation, allthe words neces
sary to a true description of the of
fences denounced. The threats, or
other tneans, used to prevent emigra
tion, the prevention, or offer to pre
vent, or deter, any chief, <fec. from
selling land to the U. States, for the
use of Georgia, or meeting Commis
sioners to hold a treaty, or for any
other purpose, must be by arbitrary
power, or by virtue of some pretended
rule, ordinance, law, or custom of the
Cherokee nation. Indictments must
contain these words as descriptive of
the offences charged, and if the proof
does not correspond with the allega
tions, the acquittal of persons accu
sed necessarily follows. A profli
gate attorney, anxious to extend the
sphere of profitable prosecutions,
might attempt to put the gentleman’s
construction on tho act—no judicial
tribunal could sustain it; every .states
man must condemn it.
One of the complaints of the Sen
ator is founded in fact. The law of
Georgia docs uot admit the testimo
ny of Indians against white persons,
except those persons who reside a
mo’ig them. This is the head and
front of our offending. The exclu
sion of Indian testimony against
whites is. a rule of the Virginia law
—a rule adopted by North Carolina
and Tennessee. The principle upon
which it rests is fonnd in the laws of
Massachusetts and Connecticut; they
permit a white man to purge himself,
by his own oath, from a charge made
against him by Indians. Hut, Sir,
this act of Georgia was not necessa
ry to exclude Indians as witnesses
from our courts of justice. By .the
common law of the State the/arc
not witnesses. Prior to 1770, the
testimony of an Indian was not ad
mitted against a slave. By a stat
ute of that date they were. As wit
nesses against even free persons of
eolof > they could not be heard, frff m
the settlement of Georgia to the pre
sent hour. Nor is this the preju
dice of Georgia only* Indians not
converted to Christianity ure not wit
nesses in any Court of Justice in ei
ther of the. States, unless specially
admitted as such by statute. I haz
ard this assertion on the presump
tion that the rule of the English com
mon law prevails in all the States.
The.rule oCthe common law is, any
person who believes in a future state,
of rewards and punishments, under
stands the nature of an oath, knows
the temporal, and believes in the fu
ture punishment of perjury, and to
whom an oath can be administered —*■
is a competent witness in.a court of
justice in causes civil and criminal.
I will suppose a case to illustrate the
application of this ride to Indians,
and will, with the permission of the
Senator, lay the scene in N. Jersey;
Imagine, Sir, a crime of the deep
est dye committed in sight of Tren
ton or Princeton. The perpetatof
is unseen by mortal eye—is about
to escape suspicion,’ when Provi
dence brings upon him one hundred
Cherokees, who seize and deliver
him up to justice. His criminality
can be established by the Cherokees.
and by them only. He is indicted—’
arraigned—pleads—and a jury ia
charged with his cause. The Clier
okees, in succession, arc presented
to testify. The counsel for the ac
cused demands the previous inquiry
into their religious opinions. Tha
Judge interrogates each : “Do you
believe that you will be .punished or
rewarded ufter you die, for the acts
done in this life?” “I don’t know—
I hope so.” “Do you understand the
obligations of an oath ?” “I don’t’
known any thing about an oath—>
what is it?” “Do you know that
you will be punished by ns if you do
not tell the truth about that man ?”
“I do nojt understand your customs.’*
Admitting the examination to be
sufficient, the creed of the party, his
belief in a Great Spirit, and his hope
of future life strong enough to per
mit him to testify, by what sign will
you require him to call down upon
himself the vengeance of Heaven,
if he swerves from the truth ! lla~
must be sworn. The manner of pled
ging himself to heaven is indifferent,
but it must be done iu ‘some form. •’
Desire the Cherokee to raise his
hand before God and affirm—lie is
unconscious of your meaning, and ’
feels no solemnity in the act. Pre-,
sent him the sacred volume—he doc
not believe in it. Offer him tho.
cross—he has no veneratiop for it.
Lay before him the Koran—he sees
it for the first time. Even the oath
of the Highlander, upon the naked
dirk, has no power over the savage
mind, With some diligence I have
sought to learn how the sanction of
the wild belief of the Indians could
be obtained to the statements made
by them. The late Col. Hawkins
gave all the information lie possess
ed—it was imperfect and unsatisfac
tory to his own mind. When Indi
an Councils are to be held, tha
Chiefs who are called to it prepare
themselves by fasting and the use
of the black drink, for the solemrr
meeting. After due preparation the
Council fire is lit up, and the busi
ness of the meeting is transacted.
What is said in Council is supposed
to be in the immediate presence of
the Great Spirit, who will punish
those who forget their obljgaticns to
truth and to the tribe. No Indian
Council fire can be fit up in our
Courts of justice—no purification be
ordered to prepare Indians to testify
under the sanctions of their wild be
lief. Their testimony must be re
jected, because it is impossible to
’ present to them any symbol by which
they feel themselves devoted to eter
nal punishment, if their evidence
should be falsely given. The one
hundred Cherokees in the case sup
posed, present when tho crime was
committed in New Jersey, would, hi
succession, be rejected, and tho
criminal acquitted for the want of e
vidcnce of his guilt. Yet, Sir, the
Senator iroin N. Jersey considers tho
Georgia law as the ne plus ultra of
injustice—as oppressive and grind
ing, and intended to drive the Chc
rokces from the Stutc. That we
desire the Indians to remove, is cer
tain. We believe their removal will
be beneficial to us and to themselves.
That we desigu to compel them by
unjust legislation, is not true—there
is not a shadow of evidence of suefa
intention. The provision of our law,
as it now stands, proves the contra
ry. Excluded by the existing law