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cip «d iinc,y of ills measure could not be doubted
mid the only difficulty full tM on the question ol'
P'HV er. We did not suppose It possible that nny
statesman in this country would deny that the In
dians within our limits were under the discielionniy
control of the Congress of the United Slates, or
of the State Legislature, nud had uot the aigu
uieuls used here been founded upon the original
right of the Indians In the soil and sovereignty of
the country, I should not trouble the Senate with
nny inquiry going futther hack than the Coiislitu
ticm of the United States. The Hon. Senator from
New-Jersey claims that the Cherokee Indians were,
ever hare been, L. ever shall be, the owners of the
soil, k independent of the (iovcrninent of the State
hi of the Union; hi he denies that the Kuropean dis
coverers, particularly the English, ever claimed or
exercised the right to legislate directly over the In
dians, as their dependents or subjects The Euro-
pean doctrine of the right conferred by the discove
ry of new countries inhabited by barbarous tiihcs,
was, I thought, well known. The discoverer claim
ed the sovereignty over the discovered count' jr, hi
over every thing under, upon, hi above it, from the
centre to the aenith. The lands, the sti earns, the
woods and minerals, all living things, including the
tuiuiHii Inhabitants, were all the property of, or
subject to, the government of the fortunate navi
gator, who, liy accident or design, first saw the
before unknown country. Such were the doctrines
of Spain, England, and France Portugal claim
ed under a Papal bull, which conferred upon the
crown empire ami domain over every country new
ly discovered on the globe, not possessed bv Chris-
nan people. This Papal title was in perfect unison
with the prevailing sentiments of an age, in a Inch
tne decrees of the Roman Pontiff made and de
throned kings, established and overturned empires.
All Christendom seems to have imagined, that, by
offering that immortnl life, promised by thp Prince
of Pence ti fallen man, tolheaborigineiof this coun
try, the right was fairly acquired of disposing of
(Jjcir persons k their property at plensure. A few
examples from the history of the discoveries and
settlements, will show the prevalent opinions of
tiiedAy. The great Columbus, equipped by Spain,
lt)r. CoMeti's History of the Five Nations con.
tains a speech of L’niitsiitlegn, n Chiel of the Six
Nations, to the flovernnr of Maryland, in 174-1;
he complains that the Indians, deceived by the
Governor of Ncw-Voik, conveyed .their land to
him in trust, to keep it snfo from the Dutch, Hnd
that the Governor sold it nflerwnrds in England to
their helovrd Unas. Penn hod long desited to
free this land from the inctimhronre upon it, but
the Indians w..uld not sell. Who! did Onns in
the mutter of this flagrant fraud t No doubt lie
gave tin in hack the land, and held the Governor
of New-York answerable for the purchase money
Hr kept the laud, ami gave the Indians some tii
fling piesents as penre offerings for the deception
practiced upon them—nnd thought he acted just
ly and generously. A law of Pennsylvania, of
1771, exhibits, in a slill stronger light, low sacred
ly regard f ul the successors of the Founders of the
City of Brotherly Love wrrpof Indian titles and
Indian lights. In common with the oilier lovers
of sobriety, the Legislators of Pennsylvania for
bade the sale.of ardent spirits to Indians, in any
laiger quantity than one gallon, under a penalty
of 20 pounds, hall to the Government, the resi
due to the informer. They did not like the good
people of Connecticut, authorized the offending
liquid to be taken from tiie poor Indians, and gi
ven to tile poor whites, but the sale of it was for
bidden, " to prevent the Indians fidm being de
bauched by rum, and cheated for their peltry."—
T'hi• praiseworthy act contains this humane anil
wise exception: Providednluays. That the Gover
nor Htid council, or persons tiy Ilium authorised
and appointed to hold treaties with any nation of
Indians, mny, at such treaties, give any reasona
ble quantity of rum, as hy them shall he thought
necessary,” £ic. To debauch the Indians with
rum, and cheat them of their land, nits quite a
Government affair, &i not at all criminal ; hut to
use ruin to cheat tin in of their ptltry, was an a
boiniuation in the sight of the law. t tear anil
definite ideas may be formed of the opinions en
tertained throughout this Anglo American part of
this continent, by an examination of the powers
proposed to be given to the Union of the Colonies
came authorized by Ferdinand anil Isabella to I contemplated in 1754, over Indians ami Indian
take all new discovered lands for the ciowns of i lands, and the reasons assigned for vesting some
Castile and Leon; if successful, as his reward, pie-1 of them in the Union. It was prop -led to vest in
siary powers were given to him over the country I the President General, with the advice of thu
and people discovered, and a large share of the Grand Council of the Union, power to hold nr di
profils to be derived from them promised. This reel nil Indian treaties, in which the general inte
g rant was not extraordinary, ftotn sovereigns who rest of the Colonies might he concerned; and
con-idered war with Infidels, and their forcible I make peace or declare war with Indian nations
-conversion to the true faith, or expulsion from | That they should make such laws as they judged
their country, as part of their Christain duty — necessary forrcgulaiing alkludiaa trade. That they
The great discovery was made—Gnannhuni was should make all purchases fiom Indians for the
found. Our imaginations have been inflamed by
eloquent deacriptiona of this event. The gnxiug
crowd of enraptured savages, watching, on their
aunny island, those vast bodies on the ocean, that,
with sails spreading to the brecte, like the while
wings of an enormous bird, came careering to
their shores; the gaudy Europt-..ns, pressing a-
touml their illustrious leader, splendidly attired,
ami moving to the sound of martial music, in all
the imposing pomp of civilization to the promis
ed.land; the lavage islandera looking upon the
Strangers, not e- men to be watched and feared,
hut as angels or gods to he welcomed and adored
The first act of the Castilian admiral was an act
of devotion. The symbol of his faith was erected,
-and amidst these wondeiing children of nature,
this first prayer to the true God was lifted up in
the Western world:
“ Domine Deus, jtterne et Omnipotent, sacro
fuo verbo, et ccelum et terrain et inare creasti;
benedicatur et glouficetur uoineii luum, laudetur
tua majestas, qua: diguata est per humilem ter-
Vum tuuin ut ejus sacrum nomen agnoscatur et
prmdicetur in hac altera mtindi parte."
After blessing and glorifying the name of God
jhat be had designed to make him the humble in-
strument of causing his holy name 13 be known
and preached in this new world, how did the great
navigator, distinguished as he was by his superior
intelligence and humanity, treat the untaught
children of nature ? Provisions necessary for
bis trew were at first voluntarily offered by the
inhabitants. Wnen no longer voluntarily offer
ed they were procured by artifice, by playing up
on their ignorant fears. When artifice did not
Succeed, they were taken by force. Without
their consent, forts were|erectcd on the territory
occupied by Indians; it power, as far as it was po
litic, exercised over them. When the admiral re
turned to his country, it is asserted that he lost,
for a season, the favor of this illustrious patroness,
Crown, not then within the BoiiihIhi ii-s of par I i
cular Colonies, or tlnit should not he w ithin llieit
b unduries when some of them might he reduced
to more convenient dimensions. These were the
powers proposed lit Albany, to he given to the U-
nion, hy the unanimous approbation of the Com
niissinners from New-Hampshire, Massachusetts
Bay, llhode-Island, New-.lersey, Maryland, and
Pennsylvania. It is to the rensnns assigned for
granting these powers to which I invite attention.
As to the power of peace Si war »ith Indian nati
ons it is alleged in the report of this plan of the
Union, (Carey’s American Museum, vol. 6. pp
287 and 8.) that was supposed to he in every Colo
ny, ami was express y granted to some hy charter,
so that no new power was intended to be granted
to the olonies As to purchases of indinn lands,
it is said, private pursh,tees are inconvenient, and
lead wars. Public fair purchases would prevent
wars. It is much cheaper to purchase of them
(the Indians) than to take ami maintain the pos
session by force : further are geneially very rea
sonable m their demands for land; nnd the ex
pense of guarding a large frontier against their
incursions, is vastly great ; because all must he
guarded, and always guarded, as we know nut
where, and when to expect them." The discreti
unary power III the States to take Indian lands,
and maintain possession by force, is here distinctly
asserted, but purchase is recommended ns the
cheaper mode of quietly enjoying the lauds grant
ed by the cr wn. Peace and war with Indian na
tions was made by the Colonics at pleasure. The
plan of the Union not being approved in Great
Britain, was abandoned by the Colonies. To re-
inedy some of the evils arising in the management
of Colonial affairs, the P.iyal Proclamation of
1763 was issued. It was w ith unfeigned surprise I
heard this proclamation quoted by the Senator from
N. Jersey, as a proof that Great Britain never assert
ed its right to legislate for the savages, or to ap
Isabella, the beroi.m of whose character was e- preprints without a previous purchase their lands,
quailed by the loveliness of her person and the I ask the Senator to examine it. It asserts :
tenderness of heart, by carrying ns slaves some
of the inhabitants of the new world to Spain,—
The wretched inhabitants of the newly discover
ed lands |soon found severer teachers of the reli
gion f peace. The name of the saviour of man
kind was belched forth in thunder from the
Souths of those dreadful fiery engines that scat
tered dismay and death through their helpless
tanks ; it broke upon the devoted race in the
deep tones of the furious blood hounds, haying
at their heels at they fled through the fastnesses
of the mountains, where they sought, in vain, a
refuge from torture and death. The dreadful ra
vages committed upon this helpless peo.de called
for the interference of the Government of Spain,
ami oppression and cruelly were reduced to
system by the “ repartlmientos" and “ cucomien-
das ” by Spanish legislation.
The Indians were divided among the Europeans
and recommended for instruction in the doctrines
of christi icity Foced to unnatural labor, starv
«d, ktortured, they died; but died not in the chris-
(San faith They rejected, with scorn, the priestly
promises of eternal joy, turned their eyes from
the holy cross, and expired, expressing an abhor
rence of that place of happiness in the world to
come, into which Spaniads could be permitted to
enter. Passing by the Portuguese, the polished
French and manly English, what did they ? The
Island of St Christupher’s was settled in eon
junction by the subjects of these great rivals.—
No Spaniard had ever fixed himself upon it.—
The French and English were permitted to gain
foothold as friends; were received as guests. In
the dead of night, when the unsuspecting natives
were in a state of profound repose, the ruffians
broke in upon and destroyed all the grown males,
as the allies of Spain, that the Island might be
enjoyed in peace by the victors.
But, to bring our examples a little nearer home,
the New-England Pilgrims, who came flying from
persecution, how piously they returned thanks to
God for the wonderful dispensation of his Provi
dence, which had swept away whole tribes of In
dians by pestilence, in order to furnish, without
experse or force, a country for a few persecuted
whites from the fast anchored Isle. Abandoning
further recital of acts which may be considered
unauthorised by governments, let us see what
were the doctrines of the English Government to
Whose power we succeeded, and upon whose opi
nions we net. What do the grants of the Kings
of England to the various proprietors contain!—
Ample, conclusive, nnd exclusive transfers of so
vereignty k domain, subject only to the reserved
rights of the Cr own, over nil the territory des
•ribed in the grant, and all the persons upon it.—
The proprietors exercised at discretion eminent
domain, end when they surrendered their govern
ments, and Colonial Governments were estab
lished in their place, the Coloniel Governments
.exercised, under the like restriction, the same
power. The Indians were considered incuni
brances upon the territory granted to the pro
prietor, or subjected to the Colonial Govern
ment, and the mode of treating them was alto
gether discretionary. Their good will was pur
chased by trilling presents, by poisonous potati
ons ; when these means were insufficient, as they
usually soon cease to be, disputes arose about trade,
mutual depredations were committed, anil the
■word acquired what could no longer be obtained
for a nominal price. The whole of Rhode-lsland
was bought for fifty fathoms of beads No pro
prietor or government ever dreamed , f resting a
claim to title upon a purchase from the natives.
An appeal was always made in case of dispute to
the patent from the crown. Such was the curse
of William Penn in his controversy with Lord
Baltimore. A few facts in relation to Pennsyl.
▼ania will instruct the Senator from New Jersey
as to the true light in which the Indians were
viewed by Penn, whose conduct to the Indians is
considered xs the beau ideal of justice and human
First the sovereignty nnd dominion of Great
Britain over Indians and Indian territory ;
Secondly, that the Indians, were, as subjects,
under the protection of the Crown ;
Thirdly, that the light to appropriate the Ian
occupied hy the Indians, resided in the Crown. It
contains grants to the whites, and reservations to
the Indians as hunting grounds ;
Fourthly, thnt it was expedient to reserve the
ground West of the sources of the rivers nan
ed in it, for the present; to the use of the Indi
ans;
Fifthly, that the land East of the sources of
those rivers, part of which was then actually oc-
tupietl by the Indians, should be grunted at the
discretion of the Proprietary or Colo'nial authori
lies.
The laws and usages of Die different colonies
throw additional light on this point, if any were
required, after the assertions of a uthority con
tamed in the proclamation of 1763. In war, the
Indian never was treated as a civilized enemy ; the
males were put to death on the principle of retalia
lion, and the women ^.children sold into slavery for
the benefit of the captors. In Massachusetts, re
wards were offered tor captives, anil pecuniary in
ducements held out to encourage the breed of
dogs found useful to go out with the limit sergeant,
in pursuit of Indian rebels. In Virginia Matsu
chiitetts, Connecticut, Maryland, Pennsylvania,
Norlh-Carolina, and South-Carolina, laws were
passed, yet on their Statute Books, (tome of them
have just been re-published hy the House of Repre
sentatives,) to regulate, to protect, and to punish
Indians.
So stood the question of power over the Indians
when the Revolution began- On the declaration
of Independence, the States, respectively, took
upon themselevs all the authority Great Britain
ever exercised, or claimed to exercise, within their
limits. The Indians were at their descrelion, and
whether they were managed by direct enforced le
gislation, or by voluntary contract, no other Go
vernment could interfere between the State and
Indians residing within its territory. The ac
kuowledgment of independence and tke Ueti
uitc treaty of peace, gave to us all that we desired,
in the surrenderor the claim of the Nution, pro
viously (he acknowledged owner of the country
k the people. In that war, Mr. President, these
savages became the allies of Britain, and were
with her conquered in the struggle. We claimed
them asour dependents, not only by thetitlesurren
dereil by Great Britain, but by that obtained by vic
tory in frequent and bloody battles. T he Senator
from N. Jersey does not think weconquered Britain,
as we are not eutitled to claim Canada and the o
(her dependencies of the British crown. Cer-
taiuly we were not conquered by Britain. Wiiat
we fought for we maintained, and it was fi ially
fonnally surrendered to us—all the rights of so
vereignly and domain to the territory formerly
held as colonial possessions by Great Britaio, then
forming the confederacy of the U. States. We
never claimed Canada, nor any other British de
pendency.
These rights of sovereignty nnd domain cover
ed the claim of legislation over the Indians, and
ot title to the land occupied by them.
The acknowledgment was made to the United
States, and the treaty of Peace formed with the
confederation. Is there nny thing in the articles-
of fcoufederation, which deprives the individual
States of any portion of their sovereignty over
Indians or Indian lands 1 The confederation,
nine States consenting, could make treaties..—
Alth.'Ogh frequent contracts were made with
Indians, nud were called treaties, it uever was
considered that the power to interfere in any
manner with Indians in a State, was compre
bended within the treaty-making authority grant
ed to the confederacy. The conclusive evidence
of this assertion is the resolution of the old con
gress directing treaties to b« held with Indian
tribes whenever a majority of the Slates ordered
them in oe held—a gross and manifest usurpation
if foundi d on the treaty power. That it was not
so intended is obvious, hy referring to thp special
grant of authority in these words; "the Congress
shall have the sole and exclusive right and power
of regulating the trade and msnngiug all affairs
with the Indians, not members of any of the Slates;
provided, that the legislative right of any State
within its own limits he not Infringed or violated."
It would he the height of absurdity to suppose
that this clause ever would have been incorporated
with the articles of confederation, if, under the
powerto make treaties, treaties were intended tube
mad* with Indians. It would have been granting all
pow»r over n subject M the confederacy, nnd then
granting a special power over the same subject
clogged with limitations and restrictions. Under
this clause the power of the confederation was
claimed and exercised. The report of the coin
mittee of Congrest, in 1787, quoted hy the Sena
tor from New-.lersey, is founded on this clause,
not on that authorising treaties. That report is
is not entitled to rrspcct ns an authoiity, however
it may be used as argument, as the opinion of the
members of the committee, Messrs. Kenry, Car
rington, Bingham, Smith, and Dane, of Beverly
Massachusetts It was never adopted nor even dis
cussed in the old Congress. As matter of opini
on it sustains State cluims to jurisdiction over
all things and persons upon Indian territory, save
only the Indians—a distinction neither support
ed hy rer. > in nor founded on any principle of na
tional law ; it admits the power of the State to
make the Indian tribes members of the State.—
The clause in the articles of confederation is suffi
ciently explicit, without looking to the glomes up
on it. The old Congress had, under this clause,
no authority to regulate trade, or affairs " with
Indians, members of any Slatethe right af a
State, then exercised or to be exercised, of incor
porating the Indians as part of their political sys
tem hv legislation, is distinctly recognized j when
zeroised, the power of the confederacy ceased.—
Over those not incorporated, the power granted
was to he exercised without infringing or violat
ing the legislative tight of any State within its own
limits. There was a practical construction of this
clausein November, 1782. The Catawbas, resid
ing in 3oulti-Carolina, applied to Congress for
redress of alleged grievances. A recotnmendali
on tn Souih-Carolina to take such measures for
their satisfaction ns the legislature of South-Caro-
lina should think fit, was the only redress obtain
ed from Congress. No doubt justice was done
by the State, as it would have been, had the appli
cation been made, in the first instance, to the
State legislature.
If I nm not deceived, Mr. President, there is
nothing in the articles of conlederatiou that touch
es the power of a Slate to legislate for the Indi
ans w itliin its limits. All the acts of Stale legisla
tion. to which I have already alluded, operated
w hile the confederation existed. With one, only,
of these, will I trouble the Senate—the act of
Pennsylvania, of 1741. tor the speedy trial of capi
tal offences committed by any Indian or Indians,
in the remote parts of the Province. [Mr. F. read
the act.] It is not to be denied, Mr. President,
that the powet'of controlling (he Indians by legis
lation, was possessed and exercised by the States
subsequent to the Revolution, as it hud been by
the Colonics prior to that event. The Constituti
on of the United States produced very important
changes in the condition of the State sovereign
ties. One thing si guarded by special provision—
the (towers not delegated to the United States, nor
prohibited to the States, are reserved to the States
respectively, or to the people. Has the power o-
ver Indians within the States been delegated by
the Constitution? It distinctly appears by the first
article of the Constitution, thut Indians, when tax
ed, are a part of the Sta'e population, and iucrase
its political representation ; excluded only when
not made subject to the burthens of the State.—
The name of Indian is found no where else in the
Constitution but in thnt article, and in (his clause,
“ Congress shall have powerto regulate commerce
with foreign nations, between the States, and with
the Indian tribes." To the confederation was giv
en power over all Indian affairs that could be ex
ercised without encroaching upon State sovereign
ty. To the Federal Government is given the pow
er, without limitation, to regulate commerce only
—an unlimited power over one object, in place of
a limited power over all the objects of our Indian
relations. The proceedings of the convention on
this clause of the Constitution show the intentions
of the authors of it. The Federal Convention
met on the 14th of May. Up to the 18lh of Au
gust no proposition was made to grant any autho
rity to the Government about to he created over
Indian affairs. On that day, powers in addition
to those previously agreed on, were proposed to
he given to the Congress of the United States.—
Among these was "to regulate affairs with Indi
ans, as well within as without the limits of the U-
nited States." [Journal of the Convention, page
200 ] With other propositions, this was submit
ted to a committee, who reported on the 2*2d of
August,that thecluuse in the Constitution, “ tore
gulate commerce with foreign nations, and among
the several States,” should he amended by adding
the words, "and With Indians, within the limits
of any State not subject to the laws thereof.”—
[Idem. p. 277.] Ou the 31st of August, this a-
mendment with others, was referred to a commit
tee formed of a member from each State present.
[Idem. p. 318 ] Onthel4tli of September, thut
cominitte, re|>orted that, in their opinion, the 2nd
clause of the 1st section of the 7th article of the
Constitution ought to be amended by adding at
the end, " and with the Indian tribes.” This a-
mendment was adopted on the same day. [Idem,
pp. 320, 324, 325.] The Convention then refus
ed to give the new Government the power to re
gulate all affairs with the Indians either uiithin or
without the limits of a State. The Convention
refused to give the power to regulate commerce
with Indians within the limits of any State not sub
ject to the laics thereof, but gave it power to regu
late commerce wit!) the Indian tribes. The lair
conclusion is, that the Congress were not intend-
ed to have any special authority over Indians with
in a State, subjected to State laws. If tbeir sepa
rate existence as a tribe is destroyed by State le
gislative enactments, tiie control of the Govern
ment of the United Suites, even over tiie com
merce with them, is atun end. When members
of a State, paying taxes, they arc enumerated as
a part ot tiie representative population ; they are,
as such, answerable to the United States only, as
other members of the community. The acts pas
sed in execution of this power, although founded
upon the mistaken assumption that the authority
of Congress was not limited to the single object
of regulating commerce with the tribes, but ex
tended to nny intercourse with them, have, never
theless, all contained the acknowledgment of the
State (lower. All Indians within the ordinary ju
risdiction of the States, and surrounded by white
inhabitants, are expressly excepted from the ope
ration of the intercourse laws, and the State Ex
ecutives arc vested by them, equally with the Ex
ecutive of the United States, with authority to
permit white persons to pass into and throughout
the Indian territories. Under this construction of
the Constitution, the Stutes of New England, the
States of New-York, of Maryland,of Virginia, of
South-Carolinn, in relation to the Catawbas, have
continued to exercise the same legislntive authori
ty over their ludinns as prior to the establishment
of the new Government. No difficulty has occur
red ; no question has been raised. What is re
markable, is, (hat in not one of those 8(ates, un
til within the last ten years, have any of the Indi
ans been fairly within the meaning of the 1st arti
cle of the Constitution, or been embraced by the
provisions of the intercourse laws In none of
these States have the Indians paid taxes; in none
have they been, until lately, within the ordinary
jurisdiction of the State. One act of the legisla
ture of New-York, passed April 12th, 1822, is wor
thy of notice, as an evidence of the undisputed
power of Slate legislation, and of the necessity
ior its exercise. An unhappy creature, an old In
dian woman, was executed hy the Senecas for
witchcraft. The executioner was tried, convict
ed, and condemned in the courts of crimiual juris
diction in New-York, although the act was com
mitted on the Seneca Innds, and in obedience to
the usages and customs of the tribe. The Legis
lature pardoned the offender, the instrument of the
tribe; at the same time, to prevent a further dis
grace to the State by the commigien, with ip its
sovereignty, of similar atrocities, the Legislature
enactedtliat the sole and exclusive jurisdiction of
trying and punishing all persons, of whatsoever
nation or tribe, for crimes nnd offences committed
in any part of the State, except offences cogniza
ble under the Constitution in the courts of the U.
States, of right belonged to, and was exclusively
vested in, the courts of justice of the State, organ
ized under the Constitution and laws thereof, it
is not in the old Slates only that legislative power
is eserr.ised over Indians. Maine, our young sis
ter, the birth of yesterday, has been, and is con
stantly permitted to legislate, not for Indians, but
for Indian tribes. In 1821, Maine passed an act, in
1826, on additional act, “ for the regulation of the
Penobscot and Pissamaqunddy tribes of Indians.”
The exclusive control of the Indians is claimed
as a branch of the treaty-making power, nnd on
this rests all the arguments used here, against the
right of the States to legislate for, nnd make con.
tracts with, the Indians. Now, Sir, 1 assert expli
citly, thnt the power to make a treaty with Indi
ans within a State, is not delegated to the United
States; and I assert further, that the power of
making contracts with Indians is not prohibited to
the States. The right of the United Stntes to
contract with, or legislate for, the Indians, be
yond the States, is nut denied, it is a necessary
consequence of the controlling power of the Gov
ernment over the Territories of the Union. That
the President has made, with the advice and con
sent of the Senate, vurious contracts with Indians,
and called them Treaties, is not to he denied.—
That various contracts have been made with Indi
ans, by States and individuals, under the superin
teudence of the U. States, is certain—they have
been submitted, too, to the Senate, voted upon os,
and have been called, treaties. What I assert is,
that these instruments are not technically treaties,
supreme laws of the land, superior in obligation
to State Constitutions and State Laws. Can it lie
believed, Mr. President, that the stern jealousy
of the State Governments gave to the U. Stutes
the powerto use a miserable fragment of the pop
ulation of a Slate, to extend, indefinitely, their au
thority, and narrow that of the State Government?
The words of the Constitution must be, indeed,
clear, to reconcile us to this absurd belief. The
10th section of the 1st article of the Constitution
proves that the Indian contracts were not in the
contemplation of the Convention, when the trea
ty-making power was discussed. By (he 7th arti
cle, already quoted, it is shown that a distinction
is made between foreign nations, Stales, and Indi
an tribes. Indian tribes are not, in the terms of
the Constitution, foreign nations or Slates. The
Constitution gives to the President nnd Senate the
sower to make treaties—the prohibition to the
States of the exercise of this power, covers, ne
cessarily, the whole power granted. Let us see
what this prohibition is. It is divided into two
classes t ” No State shall enter into any treaty,
alliance, oroonfederation." This prohibition is ab
solute, treaties, alliances, and confederations, if
made, must be made by the U. States. The other
prohibition is conditional: “ No.State shall with
out the consent ot Congress, enter into any agree
ment or compact with another State or with a fo
reign power.” A contract made between the U.
States and individuals or corporations, is not a
treaty; a compuet by State with State, or hy the
United States with a State, is not a treaty. How,
then, can a contract made with a petty dependent
tribe of half starved Indians, ho properly dignifi
ed with the name and claim the imposing charac
ter ot a treaty? Now, Sir, if a contract with an
Indian tribe is not a treaty, alliance, or confedera
tion, but is a compact or agreement, the State
Governments can make (hem at their pleasure,
without the consent of Congress*—that consent is
required only tor agreements or compacts made
with another State or with a foreign Government.
* his is no trifling verbal criticism ; important con
sequences are deduced from this abuse efthe word
treaty. Indian contracts raude with Creeks and
Cherokees by the United States, to fulfil their ob
ligations to Georgia, under the compact of 1802,
under the false title of treaties, have been plead in
bar of the rights of the State under that compact,
and asserted to he of superior obligation, not to
the compact only, but to the State Constitution
and the State laws. As usual, when error is to be
unposed upon us for truth, the magic mime of
Washington has Deen used. The venerable weight
of that great name, is of powerful influence. He
made treaties with Indians—He consulted the Se
nate—he ratified treaties solemnly negotiated—he
performed the obligations of naitonal faith. Such
are the general assertions made by the honorable
Senator. Will he show us any treaty made by
Washington, with Indians living altogether within
the limits ol a State? Can he show us an instance
of an interfernnee by General Washington, in the
management of the Indians in nny of the old Stutes,
either to prevent the formation of contracts by
State authority, or the punishment of Indians hy
State tribunals? I will not suffer the cause of the
State to rest upon the failure to produce these ne
cessary proofs of the right to use this greut name
to our prejudice. I have before me satisfactory
proof that General Washington thought, as we
think, that the management of Indian affairs was a
matter of discretion. Contracts or legislation, pur
chase or coercion, were equally at the pleasure of
the U. States, and one or the other to be adopted
as policy und justice should require. In luyingbel
fore the Senate of the United States, on the 25thof
May, 1789, the Indian contracts, made by order of
the old Congress, Gen. Washington sent w ith them
a report from the Secretary of War, Gen. Knox,
of course approved by him. This report contains
these sentences: “ That it may he proper to ob
serve, that the Indiuns arc tenacious of their lands
and generally do not relinquish them, excepting
on the principle of a specific consideration, ex
pressly given for the purchase of the same. That
the practice of the late English Colonies and Go
vernment, in purchasing the Indinn claims, has
finally established the hubit in this respect, so that
it cannot be violated hut with difficulty, and at an
expense greatly exceeding the value of the ob
ject."—(Executive Journal, pp. 1,2.) This is not
the language of a Chief Magistrate who felt that
treaties only could he made with Indians. It is
the language of a person who recommends con
tracts as the best of several modes of effecting an
object—best, because the cheapest, and conform
able to the habits of tiie people of whom he speaks
—habits not to he violated without difficulty, and
at an expense greatly exceeding the value of the
object. The Senate will perceive that the doc
trines expressed at Albany, in 1754. which I have
quoted, are advanced by General Knox. The o-
pinions of the two periods oftime are the same.—
Purchase from the Indians, not because it is the
only or the just mode of managing then), but as
the cheapest and most convenient.
It is not in this body that it is necessary to pur
sue this inquiry. The Senate have decided that
contracts mnde with Indians (on the treaty sent
last year from New-York) within a State, for their
lands, were not such instruments as required the
action of the Senate. The contract sent for rati
fication as a treaty, was returned to the President
neither ratified 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, <fe utterly disregarding the pretensions of the
United States under the treaty-making power,
and the provisions of tiie laws regulating inter
course with Indians. The Indians uot in the
States are reached by the legislation of the United
States: various provisions are applicable to them.
1 he Supreme Court of the U. States has pronoun
ced upon the condition of the Indians and the In
dian lauds—the Indians aremubject to the United
States or the States—the Indian lands owned in
fee simple by the Government of the U. States, or
by State Governments. The dependence of the
Indians was asserted and maintained in our diplo
matic correspondence at Ghent. By the judg
ment of all the authorities of the country, accor
ding to all law and all usage, the Indians are in the
condition of the perpetual inhabitants described
by Vattei as sometimes united to a social system
without enjoying all its advantages—partaking on
ly of those given by law or custom—the sovereign
having always the power to improve that conditi
on, as time and circumstances may permit.
The State of Georgia, after a fair investigatian
of her position, was confident that, never having
surrendered to the United States her power over
the Indians within her eminent domain, that the
exercipe of ibffi po\ver not hieing in any manner
prohibited to her hy (he Constitution of the Unit'
ed States, proceeded to follow the example ot the
other States; and the act of 1828 was passed, sub
jecting, after the 30lh June, 1830, all the Indians
in the State to the regular operation of the State
laws. We were not permitted, unmolested, to
follow in the footsteps of New-York or Maine.—
What was not censured in either, was in us a
crime. The judgments of Heaven were threaten
ed for our crying sins. We are told here, that,
should we persist, a tone of moral feeling will he
roused that will make Georgia tremble. Little
does the Senator know the character ol the State
It is not made of such frail materials. We trem
ble not at the approach of danger. Empty sounds
do not affect our nerves. Why should we trem
ble, Sir ? What cun be anticipated, that we have
not already endured? Falsehood? Ossa and
Pelion have been piled upon iis. Calumny ? It
lias been rolled over iis in volumes black as (lie
smoke that rises from the pit of Acheron. Threats
of the force of the United States 1 The bayonets
of the regular army have been flashed in our fa
ces, and pointed at our throats. We have endur
ed all, without shrinking, and with no other emoti
on than contempt for our calumniators, and pity
for the weakness of those who menaced, without
the courage or the power to execute their idle
threats.
Responsible to no earthly tribunal for the exer
cise of her sovereign authority, Georgia is not to
be questioned in this body, composed of the Re
presentatives of the States, for the wisdom, the
justice, or equity of her laws. I have heretofore
challenged a comparison of our Indian legislation
with that of any other State. This challenge has
not been accepted. I am under no obligation to
join issue with the Senator from New-Jersey, who
chooses to complain of our act; as oppressive to
his favorite Cherokees. As a mark of my respect,
I will, however, endeavor to correct his errors of
misapprehension mid of fact. The act of 1828
having been intended merely to give fair warning
to the Cherokees, and to the United States, of the
determination of the State, its provisions were not
carefully considered, as a session of the Legisla-
tnre was to intervene before it eould take effect.—
In 1829.it being apparent that some, if not all, the
Cherokees in the State, would remain, at least
for a time after Juue, 1830, it was necessary to
make matured End permanent provision for go-
verning and protecting them. The law of 1829
was adopted—it puts them, in every respect, save
one, on the footing of white persons, entitled to all
the benefits, and subject to all the penalties of the
civil and criminal laws. The laws and ordinnn-
ces ol the Cherokee tribe are necessarily annulled.
This annulment, the learned Senatorcalls, by a
strange perversion of the word, an outlawry of the
Cherokees. The substitution of hnd for good
laws, is certainly censurable; hut, I do not under
stand the Senator as pronouncing judgment of
condemnation upon our code. We enjoy a com
fortable slate of society under it. (>ur friends
from the North and East—from Jersey too, find
protection underlt, for their persons andthhir pro
perty—grow rich and enjoy themselves, although
outlasved like the Cherokees. The gentleman
complains that it is in Georgia, an offence punisha
ble by imprisonment in the penitentiary for any
person to prevent, by threats, menaces, or other
means, or endeavor to prevent, any Cherokee In
dian from emigrating or enrolling as an emigrant;
and an offence punishable in like manner, if any
person shall deter, or offer to deter, any Indian,
head-man, chief, or warrior of said nation, from
selling or ceding to the U. States, for the use of
Georgia, the whole or any part of their land; or
prevent, or offer to prevent, any such persons from
meeting in Council, &c. any Commissioner of
the United States, for any purpose whatsoever.—
Now, Sir, this is not so : no such crime is known
to the law of Georgia. To fulfil their compact of
1802, the U. States, by act of Congress, offered
to the Cherokees in Georgia inducements to emi
grate. Among others, payment for improvements
on the land occupied by them was promised to all
who enrolled their names, and commissioners
were appointed to fix a value upon those improve
ments. The Cherokee government having for
bidden, under the penalty of death, any Indian
from selling land to the United States, and order
ed a confiscation of the property of those who
should enrol themselves for emigration, the act of
Georgia was intended to counteract these provisi
ons ; to secure to the head-men the right to meet
the Commissioners of the United States whenever
they think proper, and to secure to the individual
Indians the right to consult their own will; the
right inherent to every freeman, of choosing the
place of his residence, and changing it at its plea
sure. The sections of the act of which the Sena
tor complained as offensive, are in these words:
i '! ^ it further enacted. That it shall nut
Lc lawful for any person, or body of persons, by arbi
trary power, or by virtue of anv pretended rule, ordi
nance, law or custom, of said Cherokee nation, to pre
vent, by threats, menaces, or other means, to endeavor
to prevent any Indian of said nation, residing within
the'Chartered limits of this State, from enrolling as an
emigrant, or actually emigrating, or removingfrom said
nation ; nor shall it be lawful for any person or body
of persons, by arbitrary power or by virtue of any pre
tended rule, ordinance, law, or custom, of said nation,
to punish in any manner, or to molesi, either the per
son or property, or to sibridge the rights or privileges
of any Indian for enrolling his or her name as an emi
grant, or for emigrating, or intending to emigrate from
said nation.
“ Sec. 9. And be it further enacted, Tint any person
or body of persons offending against the provisions of
the foregoing section, shall he guilty of a high misde
meanor, subject to indictment, and, on conviction,
shall he punished by confinement ill the common jail
of any county of this State, or hy confinementjat hard
labor in the penitentiary, fora term not exceeding four
years, at the discretion of the court,
“ Sec. IQ. And be it further 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, or
dinance, law, or custom, of said nation, to prevent, or
offer to prevent or deter any Indian, head-man, chief,
or warrior, of said nation, residing within the char
tered limits of this State, from selling or ceding to the
United States, for the use of Georgia, the whole or any
part of said territory, or to prevent, or offer to prevent,
any I ndian, head-man, chief, or warrior, of said nation,
residing as aforesaid, from meeting in council or treaty,
anv commissiouer or commissioners on die part of the
U. States, for any purpose whatever.
" Sec. 11 And be it further enacted, That any per
son or body of persons offending against the provisi
ons of the foregoing section, shall be guiltv ot a high
misdemeanor, subject to indictment, and, on convicti
on, shall be confined at hard labor in the penitentiary,
for not less than four, nor longer than six years, at the
discretion of the court.”
With due deference to the gentleman, I must he per
mitted to say, that he gives color to his complaint of
this part of our act, by omitting in his quotation, all the
words necessary to a true description of the offences
denounced. Tiie threats or other means, used to pre
vent emigration, the prevention, or offer to prevent, or
deter, any chief, fcc. from selling land to the United
Stales, for the use of Georgia, or meeting commission
ers 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 cor
respond with the allegations, the acquittal of persons
accused necessarily follows. A profligate attorney,
anxious to extend the sphere of profitable prosecutions,
might attempt to put the gentlemans construction on
the act—no judicial tribunal eould sustain it—evary
statesman must condemn it. 1
a competent witness in a court of justice hi ti
and criminal. I will suppose n case to ill,, 1 ’-"i
application of this rule to Indiana, und wi|| ,l ' | l(
permission of tho Senator, lay the scene in N 1 ^ h
sey. Imagine, Sir, a crime of the deepest i J, -»
milted in sight of Trenton or Princeton. 1 Tk **S
trnlor is unseen by mortal eye—is about to * •’he
picion, when Providence hringsupon him on!!? 1 '
Cherokees, who seize and delner him up • “°it
His eriminnliiy can be established by the c/ Ul11 "-'
and by them only. He is indicted—arraigned ,I S
—anda jury is charged with his cause.
kees, in succession, are presented to tesiir ^
counsel for the accused demands the previoi ^
into their religious opinions. The Judge i„,"'"I" 1 ?
each : “ Do you believe that you will be iTlW
re warded after you die, for the act* done in tli.L •
“ I don l know—I hope so.” •• Do y ou unde ■
obligations of an oath ?" I don’t know anv n,; 181 *:*
an oath—what is it?” “ Do you know that •
be punished bv us if you do not tell the Until »k5°“ 11
man?" " I don’t understand yunrcustoma •' J', 1 **
ting |he examination to lie sufficient, the cr<...,i-
party, his belief in n Great Spirit, and his hoit 1 ’ 1 /'
ture life strong enough to permit him to te».,?'i
wlmt sign will you require him to call down '
self.he vengeance ofHeaven, if he swervesT,^
truth I He must be sworn. The manner nfV?"! 1
himself to heaven is indifferent, but it must ll* 1 ^
some form. Desire the Cherokee to raise his l, .,
fore God and affirm-he is uneonscious of 0
ing, and feels no solemnity in the act. (L, ., !?
the sacred volume—he docs not believe in it ™
him the cross—he hue no veneration for it j
fore him tho Koran—he sees it for the fint‘t;,„ ■'
ven the oath of the Highlander, upon the v
lias no power over the savage mind. With 8om „,
B e ." ce l > !"'' 6 sought to learn how the sanction*?,
wild bcliuf of the Indians could be obtains,l,
statements marie hy them. The Inte Col. Hawk],. „
all the information he possessed-it was imperfm,
unsatisfactory to us own mind. When Indian C„
cils are to be held, the Chiefs who are called to h
pare themselves by fasting and the use of tie hL,
drink, for the solemn meeting. After due prepar
the Council fire is lit up, and the business of nl
mg is transacted. What is said in Council i,
ed to be in the immediate presence of the Greats,
who will punish those who forget their oblSSi^F"'
truth and to the tribe. No Indian Council fi?" cm U
lit up in our courts of justice—no purification heJj,
dcred to prepare Indians to testify under thesanr. ^
of then-wild belief. Their testimony must be
ed, because it is impossible to present to the,,
symbol by which they feel themselves derated to
nal punishment, if their evidence should be fatsr.lv
cn. 1 he one hundred Cherokees in the case s,,;,,.,
ed, present when the crime was committed in Lt?
Jersey, would, in succession, he rejected, and th»
minnl acquitted for want of evidence of iiiaguilt
Sir, the Senator from Ncw-Jcrsey consid.rs the C „
gin law as tho nc plus ultra of injustice—as oppiw
ami grinding, and mtedfed to drive the cCk
from the Slate. That we desire the Indians ™
move, is certain. Wc believe their removal will be
beneficial to ns and to themselves. That we dosi„„
compel them by unjust legislation, is not true—thm.
not a shadow ot evidence of such intention. This nm.
vision of our law, as it now stands, proves the cX
ry. Excluded by the existing law of the 8iai 0 [>»
being witnesses, when the act of IU29 was passed A
rogating the <_ lierokec Government nnd usages, iu»|
thought just to protect the Indians,by changinc tka
“PProhcnsion was entertained'h I
necstity of Indian testimony against auy white J.
sons, but those residing among them, the exclii
law was altered only as it related to the white residua
in the nation. J h« law as it is, is a re/axatim ofu
former rule. As such, it demonstrates the follv dfil.
charge, that it was intended to oppress the Indian
Homble si,fierii,gs hy the Indians from the airociiti
oftho whues, without the possibility of piinialiingthe
offenders, are anticipated from this law. These sli
my anticipations need not torture the Senator's mind
Such atrocities have not been committed bv the whiles
upon their red neighbors under the old, there ism
tntMnost remote (lunger to the Indians under the
The honorable Senator professes to believe, ani
no doubt is sincere, that the preservation of the Che-
Sol 'j'T 111 ', s 'he improvement^
the artsoVrivilGe'l 'ir a,h i ;” lc<Jlnent of tl,e Indians in
the aits ol civilized life, will he more rapid under theu
own usagesthan under the laws of a State. The uc-
a*ra« 0 .l’ d | t T l ,C tril 1 ,e is no ' «' e » understood. TI
iJuN ih ' ; V , ‘ le c,lccl of intennamiffi
with the whites and of slavery, the Cherokees in the*
South and those in the West are in advance of all the
other tribes in their progress ton arils refinement. The
Cherokees claim to be first. That claim u
contested by their brethren. The great man of the
tribe, the in wntorof their alphabet—Guess—theCad-
mus ot his day. and people, ha* emigrated to the West.
“ , le of "'‘ter Cherokees to folio*,
that expatriation is forbidden under severe penallin,
by the new Government of Eehota. These circum
stances must create some doubts in the mind of the Sc-
natorol the prudence of his efforts to keep the Chcio-
keeson this sale of the Mississippi. By „hat proccu
of reasoning he persuades himself that the Cherokee
aws arc more civilizing than the laws of a Stale, he
has not explained, lira zeal cannot be exerted in fa
vor of the 1 ndian Government. It is for the benefit of
One of the complaints of the Senator is foundeifia
f * c ‘- ,. Th * tow of Georgia does not admit the testimony
of Indians against white persons, except those white
persons who reside among them. This is the head St
front of our offending. The exclusion of Indian testi-
mony against whites is a rule qf tho Virginia law—a
rule adopted by Nqrth-Carolina and Tennessee. The
principle upon which it rests is found in the lawi af
Massachusetts and Connecticut; they permit a white
man. to purge himself, by his own oath, from a charge
made against him by Indians. But, Sir, this act of
Georgia was not necessary to exclude Indians as wit
nesses from our courts of justice. By the common
law of the State they are not witnesses. Prior to 1770,
the testimony of an Indian was not admitted against a
slave. By a statute of that date they were. As wit
nesses against even free persons of color, they could
uot be heard, from the settlement of Georgia to the
present hour. Nor is this the prejudice of Georgia
only. Indians not converted to Christianity are not
witnesses in any Court of Justice in either of the
States, unless specially admitted as such by statute.
I hazard this assertion on the presumption that Die
rule of the English common law prevails in all the
States. The rule of the common law is, any person
who believes in a future state of rewards and punish
ments, understands the nature of an oath, knows the
temporal, and believes in the future punishment of
perjury, and to whom an oath can be administered—is
,1.,. stm • . me ueiiemoi
the rave. Their government is of no conscuuenre, ex
cept as it operates to improve their condition, moral,
physical, ami intellectual. But, Sir, the gentleman u
deceived by the loo favorable representation!) of the
Miraionartc|>, and other interested persons, as to the
true condition of the Indians, and as to the effects of
their new government* He believes every thin* 7 stat*
ed by the persons favorable to the Cherokees, and dis
trusts all statements by whom, or whenever made, un*
favorable to them. In* addition to the printed evi
dence that the flattering accouuts of the civilization of
the tribe are exaggerated, and too highly colored, I
bold in my hand a letter from a mo9t respectable citi*
ten of Alabama to the Chairman of the Committee on
Indian Affairs. I will not read it; it is too strong to
be read aloud before this Assembly. 1 will send it ts
the {Senator with this warniu*;, if he is determined, ia
defiance of rea8°n, to hold fast to his faith in Cherokee
Civilization and Christianisy—he must cover his eves
rn. 11 ", ,an “ a P- Independent of this evidence,
the Cherokee usages, laws, and ordinances, with which
the oc iator secuiH to bo so desperately enamoured,for
the preservation of which lie is ready to hazard the
safety of the Uuion by a trial of strength betweeu the
United States, and all the Southern and some of the
Weptcrn States, where there are Indians, might sene
to give hun clear views of the civilization of the Indi
ans, and the wisdom of the Cherokee Government,
pome of these usages, laws, and ordinances, merit a
brief notice.
Polygamy is allowed hy usage; bv ordinance, while
men are forbidden to have but one wife, and it is re-
commended that all others should also have but one. A
prohibition to an Indian of more than one wife would
have Shocked their orejudices too much—a recom
mendation was therefore substituted. Docs the usage
corrected as it is, meet the Senator’s approbation ?
II a man overtake a horse thief, and his anger is
very great, lie may put the thief to death—the death is
to remain on the conscience of the murderer—no sa
tisfaction is to be claimed for the offence.” Is this
provision suited to the gentleman's ideas of the regular
administration of public justice ?
"An assault with intent to commit murder, rape, or
robbery, is pdmshcd by such fine as shall be assessed
by a “■* -— •*" -
poral
fifty i b cmmb
waited Adequate to the atrocity oftW offcEeesT
J he moral discriminations in the Cherokee laws
will be fully underotood by comparing these with ordi*
nances of a recent date.
All persons who shall leave their houses, farms, ot
Other imnmvpntll Oml kiwJ «l I I.lir
lury, not cxceediug fifty dollars, and by such cor-
il punishment as the jury may indict, not exceeding
Stripes On the harp hnrk M A eo .n.
other nuprovents, and bind themselves to emigrate by
enrolment or otherwise, with intent to remove out of'
the nation, as emigrants to any other country, forfeit
almght to the houses, farms or other improvements
, P c, J°n 8 who enrol foremigration under theaB-
thority of the United States, forfeit their citizenship-
1 he sale of improvements to any person so enrollcdt ft
punished by fine not less than one, or more than two
thousand dollars, and by one hundred lashes; the con
victed person being thereafter ineligible to any offer
p °. r lru8l » in Hie nation. Indians ea
rolled for emigration were declared to be intruder^
*• ii?® Jo punishment, at the discretion of the prifl'
cipal Chief, if they did not remove within fifteen
after the 31st of October 1829.
For the preservation of ordinances thus marked, the
honorable gentleman invokes the agency of the Senile*
condemns the State of Georgia; and without hifh*
clearly comprehended, censures her laws. It is for *
Government, interfering, by severe penalties, with the
personal rights of Its people, to remain or to remove
their pleasure, to sell or retain their improvements nt
discretion, that his unabated zeal has been exerted.
It is for this government, he desires to compel the Pre*
•ident to make war upon a State. For disputing i« *»•'
thority, Al annulling its laws, he calls down upon Geor
gia the thunders of Divine wrath. Verily, Sir, it
9 U ^* 8 ^e exercise of some forbearance, to dismiss thij
subject without farther remarks upou the opinions ii»
sentiments which the geqtleman has expressed. For
his misapplied, and, if successful, mischievous effort?,
I trust ha will receive Die appropriate reward; that
not the poor Cherokees who remove to the West only,
may look hack to bless him, but that he may receive the
blessings of all the Cherokees, of those who remais
and those who remove. For his prejudiced exatpins-
flon, and unjust condemnation of our cause, ouremass
will not follow him. Chiritably behoving in the puri
ty of his motives, giving him credit for honest but mitn.
taken zeal, if unable to correct, we can at least, par
don his errors.