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CHEROKEE PHCENIX, AXD 0DIMS’ ADVOCATE,
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"isiDiAirs.
SPEECH
Of Mr. Robbins, of Rhode Island, in
Senate of the V- S.—April 21, 1830,
ON THb INDIAN QUESTION.
The bill to provide for an exchange
of lands with the Indiana residing in
any of the Stales or Territories, and
for their removal west of the river
Miasippi. being under consideration,
Mr. Robbins, of Rhode Island address
ed the Senate as follows:
Mr. President: The whole argu
ment in favor of this bill turns upon
the question, whether the Indian na
tions within our territorial boundaries
are competent to |iu£ke treaties with
the United States. , For it makes no
difference w hether the Indian nation
he within the chartered limits of a
State, or out of those limits, if within
the limits of the United States. For
if being within a §tate renders the In
dian nation incompetent to make a
treaty, the being within the United
States makes them equally incompe
tent, the reason being the same in
Doth cases—namely, the being with
in the iurisdiction of another power;
and therefore, as the argument is, sub
ject to that jurisdiction.
' If these Indian nations are compe
tent to make treaties, then the pro
posed law is unnecessary; as its ob
ject may be effected hy treaty; and
this law is not necessary to aid The
Executive in making this treaty.—
And if theses Indian‘Elions are com
petent to make treaties; then this
proposed law is not only unnecessary,
but it is unconstitutional; for it is to
njake a treaty by the legislature;
which caH only be made by the Ex
ecutive and Senate.
The turning question, then, of this
whole debate, I repeat, is, whether
the Indian nations within our territo
rial boundaries are competent to
make treaties.
Before I ( proceed to discuss mis
j question, I have to remark that it is
matter of surprise that this question
should now be made, when it is nqw
made for the first. tipie. From the
time of the discovery of this new world
by the old, down to this time, now
more than three hundred years, the
competency of an Indian nation, situa
ted within the Jurisdiction of another
power, has never been made a ques
tion before:' No jurist, no writer up
on public law has ever made it a
question. But, through all that long
tract of time, treaties upon treaties,
and almost without number, have
been made with them, without a
doubt, in a single instance, of their
competency to make tin This is not
denied on the other side; indeed it is
admitted that the doctrine and prac
tice of all past time, for century up
on century,
these nations,
__ NO. e.
tuey ever iu no ic. minaledf and how I the Indian nations being at this mo- j British claim to it as founded in dis*
are tjie relctions of peace to be ever rnent sui juris, nor the fact that they j cover y, was a claim to the domain of
restored, without the intervention of have always been sui juris; for these , their country,; subjeetto therr right of
can neither h* JisnPi.v/t ««.• «Wi»d- occupancy. TVvy of course must be
situated in that
treaties?
Can any one then wish to see es
tablished a doctrine fraught with these,
and it may be with other equally de
plorable consequences? I should
hope not.
But if we must, prove, what has
never before been denied—what has
always been ad milled-— adrpitted in
theory, and in practice admitted —
tjamely, that the Indian nations within
our territorial "boundaries are com
petent to make treaties—how is
that competency to be made out?
I agree that an Indian nations, to be
competent to make a treaty, must be
a sovereignly; for that treaties, prop
erly so called, can only he made by
with
can.neither he disproved nor denied;
hut to prove that though they are sui
juris de facto, they are not sui ju
ris de jure-, not being aware, as it ap
pears to me, that the fact constitutes
the right.
It is said, for instance, that the
crown of Great Britain claimed a
right to this country by the right of
discovery; that what was the right of
the crown, is now our right, and
therefore that the Indian nations are
not sui juris de jure.
Now what was the right as claim
ed by discovery? (1 make no ques
tioa of that right, for the
domain. That do
main was parcelled out into colonies,
now become States. So that, hy pitT
very claim to their country, they
vvtre^ to be and to remain within
our jurisdiction, and exempt from
that jurisdiction, and subject only to
their own.
T? strengthen this State chum a-
garnst the Indian right, it is said \hgfj
the State within its territorial limits
has all the rights which the crown of
Great Britaiq had within the fame
limits. But, as has been stated, the
sovereigns with sovereigns; but for
h.is bee;i, to consider j this purpose it is not material wheth-
tbus situated, ns com- j er the sovereignty be dependent or in-
petent to make treaties. But all this dependent; sovereignty is all that is
is treated as if the whole world, fi om neeessaiy to this competency. The
the beginning down to this time, had 1 honorable gentleman frow Alabama
been benighted upon this subject; as if j (Mr. jVl'Kinley) said the. sovereigns
they had ignorantly supposed and he-; must be equal, but he will find no au-
lieved Indian nations, thus situated, j thority for that opinion, if, hy equal,
were competent to make treaties, j he meant any thi.pg more than that
when in truth they were not compe
tent to make treaties: . That Great
Britain was in.this deplorable stale
ofignorance, with all her statesmen;
that our governments, both state and
national, had been in this deplorable
state of ignorance,with all their states
men; that the jurists or writers upon
public law, of all the world, had all
been in this deplorable state of igno
rance. I say so treated; for I do not
perceive that this new opinion is ad
vanced with any less confidence, or
with any more diffidence, on account
of that mass of authoiity and usage a-
gainst it.
I have further to remark, that if
■—• *-
tions, thus situated, are not, and have
not been, competent to make treaties,
then all the treaties made with them
ate nullities. If so, the consequence
of that consequence i9 enough, I
should think, to make gentlemen
pause a little, and even fear the suc
cess of their own argument; for the
consequence would he such that the
whole body of the l ights acquired hy
Indian treaties, or held under them,
would bo torn from their foundations,
and the resulting evils would he in
calculably great. I have said that
in that case these treaties would be
nullities, and who can doubt it? The
President and Senate have the power
to make treaties; hut a treaty made
with a party not competent to make
it, is hot a treaty; and the President
and Senate are not competent to
tpake a compact which is not a trea
ty; so that eyery such treaty is void,
as a treaty, because the Indian nation
w.as not competent to make it; & it is
void as acompaet, because the Presid
ent and Senate are not competent to
make it. If thiq ho so, my lion, friend
from Tennessee heed not disquiet him
self upon the subject of his contradic
tory obligations: for, upon his doc
trine, these treaties have created no
obligations upon the United States.
Again; I have to rerhark that if these
Indian nations, thus situated, are not
competent to make treaties, no more
treaties can be made with them; that
treaties which havo been made, and
not ratifies), .'if any such there be,
must he rejected; treaties which have
been projected, for the purchase and
extinguishment of Indian titles, as that
jn Indiana for instance, must be aban
doned: We are to get no more lands
from them by treaty; if you ore to
get them "at oil, you are to get them
by compact, and this compact to he
made, not hy the Executive and Sen
ate, but hy the Legislature. And,
pray, how is the Legislature td make
such, a .compact? It would he impossi
ble, 1.think, to overcome the difficul
ties (o this mode of acquiring Indian
lands. ,
And then, in case of future wars
with these Indian nations, how are
both must, be sovereigns. A depen
dent sovereignty is still a sovereignty,
and competent to make a treaty. 1
understood this to be admitted by the
honorable gentleman from Georgia,
in the outset of bis argument,; though I
could not reconcile the subsequent part
of his argument with this admission.
Now what is sovereignty? It Is io
he sui juris-,—that is, to be subject,
within itself, to no law but the law of
its own making; externally it may he
subject to another jurisdiction, and
then it is a dependent sovereignty—
to what degree dependent, will de
pend upon the treaty or treaties by
which it is made dependent, if so
WMifiiuY, i. rent y. ^ ovv Ibis 13 the
country, sui juris, and thereIorfe sove
reign; but subject externally to anoth
er jurisdiction, and therefore a de
pendent sovereign. This hns always
been their condition since they ceased
to be -independent sovereignties.—
Since they ceased to be independent
sovereignties!, there never has been
a time when this was not their condi
tion. When, or where, 1 would ask,
lias any Indian nation been subject
within itself to the law of another ju
risdiction? I know of none; I have
heard of none. If there be one, that one
would be an exception from the rest:
that one may have relinquished its
light to be sui juris; unA then it would
not be regarded as an exception.
Now the fact of being sui juris, and
always having been so, constitutes
the right to be so. I would he
glad to know if any nation has, or ev
er had, a better title to be juri sui
juris than the fact of being so, aiid of
always having been so? than a pres
ent possession, fortified by n pre
scription that knows no beginning;
that runs hack as far as memory or
tradition goes, and beyond to where it
is lost, in that oblivion in which un
known times and their memorials are
all buried and lost! And such is the
title of every Indian nation now in
fact sui juris, to be, and remain sui
There never was, there never ,
na-
eve,r
juris ] . ■
can he, any better title to the right of Indian nation can have no light to ex-
being sui juris. To the validity of emption from that jurisdiction. If
sucb a title, its acknowledgment
by other aovereignties is not necessa
ry; but if it were, there never has beeu
a. time in which it was not acknowl
edged by other sovereignties, or was
denied hy any other; but it is not neces
sary, for a right in present possession,
fortified and sanctified by sncli a pre
scription as this is, stands on higher
ground, much higher, titan any ac
knowledgment by other sovereignties right, for that must be the situation of
cptiid place ft. Unquestionably then ! every Indian nation within our terri-
tliese nations are sui juris, of right sui torial limits. It is so, and was to be
juris: therefore sovereign, therefore so, by the very claim originally made
competent to make treaties.
A multitude of matters _ have bean
urged upon our consideration on the
otbar aide, not to disprove the fact of
right, for the time has I down of Great Britain made uo such
gone by for making that question, ex- j claim against the Indian right. Hap*
* ““ ~ ' |?y will it be for these nations, if .tljMg
claim of that crown is adopted by the
btales ns the measure of their claim,
and if they will content themselves
therewith.
Still it is said that a sovereign in
dependent State has a right to juris
diction over all its own population;
and these States were sovereign and
independent when they adopted Thrt
constitution; and that they'did not sur*
lender this attribute of sovereignty
by that .adoption. Admitting allthis, 1
it is still to be proved that an Indian
nation within a State is a part of the
population of that State. $fow- can
this be seriously pretended? The
population of a State, is the popula
tion which constitutes the community'
which constitutes the Statue, which is
protected by the laws and amenable
to the laws of (he State as that eonw
munity. But an Indian nation Within
a State is not a part of that comimini-*
ty-
. Tli« population of tljo I.ThRacI ai«s
is taken periodically,’ by regular cen
sus; it is now about to be taken for
the fourth time; were the Indian
tions within the United States
included in r.y census, ns a part of
ve?7 " as* 'Vtefj 1 'tfliJ T, w/M .S t altts^
why not, if all persons w ithin the lim
its of a. sovereign jurisdiction are ne
cessarily the subjects of that jurisdic
tion, as a part of the populotion under
that jurisdiction?
The States pay direct taxes to the
United Suites, in proportion* to their
numbers; that is, to their population.
But are the Indian nations included in
that population? Never—they are
expressly excluded hy'tlie constituAion
of the United States. Then,' thf}
States themselves, by adopting the
constitution, have defined what con
stitutes their own population; add
have excluded from it these Indian na
tions. .. .
Still it is insisted, and as a branch
of the same argument, that the con
stitution gives the Executive no au
thority to go within a State and make
a Treaty with a part of its population.'
This is true; hut an Indian nation
within a State, as w* have just seen,
is not a part of its population. Tl|(i
power to make Treaties, ar’giypp by ,
the constitution, is a general power*
and may he exerciced at the Execu*
live discretion, with any nation or
people competent to make a treaty*
and it is not material w here that'na
tion is situated or placed; vff compe
tent to make a treaty, our Executive
is competent to make it with them.
Again, it has been said that m sev
eral States in which is situated somb
tribe or remnant of some ■ tribe
of Indians, that these States have
subjected those Indians to $>tate legis
lation. Without stopping to inquire'
how that fact is, apt! if ar fiicf,’wheth
er it has beeu with the will or againsf
the will of these Indians; it is enough°
to say, that if those Stales hav*
undertaken that legislation ov» r
those led ans, against their will;
their tvill; ahd while they were a tribe
and sui juris; and when, up to that
time, they had always been sui juris;
that fact, instead of proving a right
in that legislation; proves a wrong by
that Legislature} and iMteif) of dUr
cept as a moralist or historian.
Whatever was the defect of that
right originally, time now' has sup
plied that defeat, ns far ns defect of
right can be supj lied by lapse of
time.) But what was Uiat right .as
claimed hy discovery? It was this:
a right to the domain of the country,
subject to tfie right of occupancy by
the Indian nations; and that occupan
cy to he without revtjiction as to
mode, and without limitation as to
time; with the right of alienation of
their possessory title, restricted to
the proprietor of the domain. This
was the claim of the British crown as
founded on discovery; it was so de
fined and settled in the case referred
to by the honorable gentleman from
Alabama, (Mr. M'Kinley,) the case
of Johnson and M’Intusli. It was so
settled by the court, iu that case, be
en use'it had been so settled by what
; had become the customary law of
nations. But did the King of Great
Britain cluitu (fur llml is (lie import
ant question,) did he claim these In
dians as fiis subjects, over whom, or
for whopa, he had a right to legislate,
jfor^ their internal regulation? No,
kind advanced; never h«oVd,'ot;°tJ)li?. t ]
thought of; that claim left them as it Neve
found them, subject within them
selves only to their own jurisdiction.
tlesidea this notorious fact, the
l ight of pre-emption, claimed hy dis
covery, is decisive to prove that the
right of jurisdiction was not claimed
If the crown claimed these Indian na
tions as his subjects, why claim a
pre-emptive right to their titles?
Did any king ciaiir. a pro-ernptive
right to the land titles of his own sub
jects? Never. If discovery (hen is
a good authority for what it claims.it is
good for what it disclaims; it disclaiais
the right of jurisdiction over and for
the Indian nations. It therefore af
firms and confirms this right in them,
and guaranties it to them. Is it pos
sible that the honorable gentleman
from Mississippi can suppose that the
case of Grenada is a case in point?
That was the case of a conquest, and
the conquest ceded by the treaty of
peace to the conqueror to he hoiden
as a part of his dominions, and the
people as a part of his subjects; and
both have been hoiden so ever since.
It is said again, that a State has a
right to exercise jurisdiction over per
sons wijhin its territorial, limits, and
of courso over the Indian nations with
in its limits; and, therefore, that such
this State right was admitted^ it
would not disprove the Indian right;
it would only prove that the two
rights were incompatible, and that if
the State right is exerted and exe
cuted against the Indian right, (hat
Indian right must be annihilated.—
That thq Jiulian natjpn is placed with
in the limits of another jurisdiction,
proves nothing against tho Indian
to the country, on which it was ori
ginally settled, and by which it is
now held. This country was in the
possession of these Indian nations; the