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Stnt«, to extend her jurisdiction over
the Indian** “At the U*t ae»*ion,
•aid he, of th* Legislature of Missis
sippi, a propositton'Was made to ex
tend the civil power oftheir co '"'*
to their own citizens, who had con
tracted debts within the State, and
had fled to this savage sanctuary.
The matter was debated many days,
and it was at last decided that
there existed no power in the
State, to extend its laws in the man
ner sought by the proposition.”
These authorities, 1 think, will
bundantly prove that the claim of the
Southern States to exercise jurisdic
tion over tribes, with whom there ex
isted treaties, forms a new era.
Whether it be that to which the Sec
retly of War alludes, 1 pretend not
to decide. ...
While the Secretary of War an
nounces this new era, the l resident
in his Message at the opening of the
Session informed us, that “the benev
olent pol ic y of the Government, stead
ily pursued for noarly thirty yeais,
in relation to the removal of the n
dians beyond the white settlements,
is approaching to a happy consumma
tion.’
at
This statement appears to me
variance with that, which was made
iu the annual message of the last yeai •
In that document we were told, that
it has long been the policy of Govein-
jneut to introduce among the Indians
the arts of civilization, iu the hope of
gradually reclaiming them from a wan
dering state.’ This is certaiuly a be
nevolent policy; and this is the policy,
which has been steadily pursued lor
nearly thirty years. Kat last ycai,
the President added, ‘this policy has,
however, been coupled with another,
wholly incompatible with its success.
Professing a desire to civilize and
settle them, we have, at the same
time, lost no opportunity to purchase
their lands, and thrust them further
into the wilderness. By this means,
they have not.only been kept iu a
wandering state, but have been led
to look upon us unju9t and indifferent
to their fate. Thus, though lavish in
its expenditures on the subject, Gov
ernment has constantly defeated its
own policy.”
Last year the benevolent policy of
settling and civilizing them had been
thwarted by another, that of removal
to the west, declared to bo inconipal
ibie with its success. This year
the removal to the west js
declared to be the benevolent
policy, which lino been steadily pur
sued. In my judgment, the view
taken in tbo message of last year i»
the sounder.
But the policy of removal has, 1
grant, been pursued steadily for thir
ty years, but never in the same man
ner as now. It was never thought of
that all the treaties and laws of the
United-Stales respecting the Indians
could be annulled, and the laws of tin
states extended over them; laws of
such a character that it is admitted,
hay urged, that they cannot live under
them. The policy of removal has
teen pursued by treaty, negotiated by
persuasion, urgency, if gentlemen
please, with importunity. But the
compulsion of State legislation and of
the withdrawal of the protection of
the United States was never before
heard of. If the President means
that the policy of removal uuder this
compulsion is thirty year9 old, I do
not know a fact, on which his propo
sition can stand for a moment. IIow-
ever pursued, the policy of removal
had been attended with limited suc
cess. Vast tracts of land had indeed
been acquired of the Southwestern
tribes, but chiefly by bringing their
settlement# within narrower limits.
Between the years of 1809 and 1819,
about, one-third <of the Cherokee*
tveut over to Arkansas, and (he hard
ships and sufferings encountered by
them were a chief cause why their
brethren, the residue of the tribe, re
sisted every inducement held out to
persuade them also to emigrate.—
The Choctaws, by tbo treaty of
Doak’s Stand, acquired n large tract
of country between the Red River
end the Canadian; but would not in
any considerable numbers emigrate to
it. In 1826, a part of the Creeks
were forced by the convulsions of that
tribcioemigrate, under the treaty of
tk»t year. In 1828 1ho Choctuws
and Chickasaw# sent & deputation to
explore the country west of Arkansas,
Which returned dissatisfied With its
qpPP twice
going on with this limited success,
that of civilisation, the truly benevo
lent policy, wfs much more prosper
ous. Th* attempt to settle, to civil
ise and to christianize some of these
tribes succeeded beyond all example.
If the accounts of their previous state
of barbarism are not exaggerated, the
annals of the world do not, to my
knowledge* present another instance
of improvement so rapid, within a
single generation; unless it be that
which has been effected, by a similar
agency, in the Sandwich Islands within
the last ten years.
During all the time that these two
processes were going on, that of re
moval (declared last year by the Pres
ident to be inconsistant with civilizing
them) with-partial success; and that
of settling and improving their condi
tion, on this side of the Mississippi, in
which the success had been rapid and
signal, no attempt was made to en-
■ r c!i upon their limited indepen
dence. The right of the United
States to treat with them was no!
questioned; the States never attempt
ed la legislate over them; anil the
possessions and rights guarantied to
them by numerous treaties were eon
sidered by them, and by us, as safe
beneath the protection of the National
Faith. But at length, under the late
administration of tho General Govern
ment, (lie south-western States, tak
ing advantage of the political weak
ness of that administration, seemed
determined to adventure the experi
ment, how fast they could go, to effect
t»y a new course of State legislation,
a revolution tn the Indian policy of
the countiy.
Georgia led (he way. In J32S she
passed a summary 1h\v to take e(f < t
prospectively, extending her jurisdic-
Liftn civil and criminal over the In ian
tribes within her limits. In 1829,
tltis law, \\ ith more specific provis
ions, was re-cnaoted to take effec t on
the first day of June, 1830. This ex
ample ol Georgia was imitated by
Alabama and Mississippi, By these
State laws, the organization previous
ly existing in the Indian tribes was
declared unlawful mid was annul lod.
It was made criminal to exeicise
any function of Government under
authority derived from tho tribes. The
political existence of these commu
nities was accordingly dissolved, and
their members declared citizens or
subjoots ol the Stales. What a con
trast, in two or three venrs! In 182b,
after many day’s debate, the legisla
ture of Mississippi decided, that it
had no right to pass a law to pursue
its own citizens, being fugitive debt
ors, into the Indinn country. In 1829/
the same Slate exte'nds fill its laws
oyer the Choctaws, abrogates their
Government and denounces the pun
ishment of imprisonment on any per
son who should exercise nny office un
der the authority ofthe tribe.
'* lie Indians, as natural, looked to
the Government ofthe United States
for protection. It was the quarter
vxhence they had a right to expect it;
where, as I think, they ought to have
found it. They asked to be protect
ed in the rights and possession as guar
antied to them by numerous treaties,
and demanded the execution, in their
ia\ or, of tlie laws of the United States
governing (be intercourse of our cit
izens with the Indian tribes. They
came first to tIre President, deeming",
nnd rightly, that it was his duty to
laws of Georgia over your pbople; at- intimated, that tho Bank of the Uni- (transgress the law to a thousand bol
ter the l»t June, 1830. It il a quel- ted States is unconstitutional. Is ho lurs nine and twelve months’ imprison.
* (hereby authorized (o put it out of raent, ond authorizes the President h
A ...... nr„. .,11 ...» j :i:« ' , u
afford them this protection. They
kneu him lobe the supreme Execu
tive Officer of the Government; that
as such lie had hut one constitutional
duty of executing them. The Presi
dent refused to afford the protection
demnnded. He infoimed them, that
he had no power, in his view ofthe
rights ol the States, to prevent their
extending their laws over the Indians;
and the Secretary of War, in one of
his communications to them, adds the
remark, that the President had as
little inclination os power to do
so.
When this decision of the Presi
dent was taken, doc6 not certainly ap-
laVo ,be 23J llf, y of March,
182J, ho informed a Delegation of
Greek Indians, that, if they remained,
they must become subject to the
law of Alabama. On the 11th of’A-
pril, the superintendent ofthe Bu
reaui oflndian Affairs, by direction of
the Secretary of War, stated to the
Cherokee Delegation, “That tho
Secretary of War is not now pre
pared to decide the question involv
ed in the net of the .Legislature of
Georgia, to which you refer, in which
mi.,!... p.uo, or „ r * i.” z asaps
ter the lit June, 1830. It IS a quei
tion which will doubtle*s be the sub
ject of Congressional inquiry, and
what is proper in regard to it will 'no
donbt be ordered by that body.
“In regard to the act of Georgia,
no remedy exists short of one which
Congress alone can apply.”
On the 18th of the same month, a
letter of the Secretary of War, to
the same delegation, tells them, in
the most positive terms, that the In
dians must submit to the Stale
laws.
On the 14th ^October, the Secre
tary, writing to Governor Furs J>h,
uses this language: “At an early peri
od, therefore, when this question a-
rose, the Cherokees were given dis
tinctly to understand that* it was not
within the competency or power of
the Executive to call in question the
right of Georgia to assart her own
authority within her own limits, ond
the President lirs been gratified to
witness the extent to which a princi
ple so reasonable in itself, so vitally
important to State Sovereignty, has
received the approbation of his fellow-
vitizens. This oft assorted and de
nied right being settled, on the side o*
the State, to the extent that Execu
tive interference could go, it was ex
pected and hoped that a little longer
continuance of that forbearance which
Georgia has so long indulged, was all
lhat was wanted to apsure to her the
purposes and objects she had before
her; and after n manner, too, to
which philanthropy could take ne ex-
t eplion.”
Such was the fate of the question
which was'o he the subject of Con
gressional inquiry. In what way that
popular sanction had been given,
which the President appears to have
taken in lieu of any legislative decis
ion of this question, does not ap
pear.
At the ensuing session of Congress,
a memorial was presented to this
House, signed by three thousand
nd eighty live individuals of the
Cherokee tribe. Another memorial
was laid upon our tables from the
Creeks. The subject r.lse was pre
sented to us in the annual message of
lhc President, disclosing n state of
-facts which seemed to inquire, as
well as to invite the decisive action
of Congress. Finally, tho public
mind was extensively awakened.
Very numerous memorials, on the
subject of the revolution which was
going on in our Indian policy, were
sent in to Congress. Some of these
(and of this character was Hie first
presented) approved the change: by
fur the greater condemned it.
In this way the question of the
right of the .Stato to extend her laws
over Indian tribes, in contravention of
treaties and the. laws of the United
States, was brought before Congress
in the fullest and amplest manner.
Il was not, however, directly met.
'I’iie President had, in the recess of
Congress, declared tlmt lie could not
and would not enforce the treaties
and laws. The Secretary of Wai
had almost sneered nt the idea, tlint
the Indians could possess rights under
a treaty tony years old; ns if the va
lidity of a treaty were impaired by
the length of time its provisions had
been in force. But the treaties were
still preserved iu our archives. The
intercourse law founded upon them
still stood unrepcaled on the Statute
Botk;andit appears to me (hnt the
proper way in which this question
wes to bo met, would Imve been a
proposition to repeal the laws and ab
roga'e the treaties.
In my judgment there was an error
in (he first step taken by the Presi
dent. Ilo decided a question which
he had no constitutional competency
to decide. When the first movement
was made by the Slates, he should
have interposed to maintain the trea
ties and enforce the laws, and have
referred (he subject to Congress.
What other power has tho Executive
over a treaty or a law hut to enforce
it? The principle assumed by the
President and by the Secretary is,
lhat whenever the Executive thinks a
law unconstitutional, he may forbear
to execute it. Now, how will this
operate on other questions? Sup
pose Mr. Adams had thonglit the com
pact of 1802 unconstitutional, (ns it
was held to he iu this debate Iasi
winter by a Sonntor from Alabama)
could ho have refused (c enforce it;
could ho have forborno to' expend an
appropriation granted to carry it into
effect? The President has plainly
the law? A very respectable por
tion of the coin inanity regards the
tariff as unconstitutional, and as such
null and void? The intercourse law
was passed as it stands in 1802: the
substance of it was enacted in 1791,
and the Secretary of War, with fill I
concurrence of the President, lays
his hand on this law, which is forty
years old, tells us it is unconstitution
al, as such not obligatory.
Let us hu(►consider the extravag
ance of this doctrine. TheConstilulion
gives to the President a veto on nn act
of Congress iu its passage, and if he
withhold the sanction of his name,
without the Executive concurrence
which may be wilhlioidcn on the very
ground ol uncomlitutionalily, the act
becomes a law if two-thirds ot Con
gress adhere to it. But of what use is
this or any oilier limitation on the
exercise of the President’s veto, if he
may annul any law and all the laws in
the statute book, on the simple opin
ion lhat they are unconstitution
al?
But what, it may be asked, is the
Piesident to do: hew i-. lie to proceed
with an unconstitutional law? 1 an
swer this question, by asking another,
how is he authorized to arrive at the
conclusion, that a law is unconstitu
tional? Is he created by the Constitu
tion, a functionary to pass on the un-
constitutionality of laws? I can find
no such power given him m the consti
tution.
It is one tiling for a law to be as-
certained and declared unconstitutional,
by the competent tribunal, and anoth
er thing for it to he Ihuvght unconsti
tutional, by any citizen or officer
called on to obey or to enforce it.
The citizen is not found to obey an
unconstitutional law; for it is no law.
But il he undertakes to disobey a law
because in his private judgment, it is
aneonstitulionai, it is at his risk and
peril; and il will act probaly bo 'long,
before, some process of law will teach
him that he is not authorized finally
to adjud.cate such a question. An Ex
ecutive officer, high or low, is cer-
audy not hound to execute an uncon
stitutional law; hut his simply thinking
it lo be unconstitutional is a very diff
erent affair.
.'iupjioeo a c-olloetor t-liould think
(he taiifi' unconstitutional; could he
forbear to collect the duty? Couln the
Secretary of the Treasury, holding
the same opinion, remit the duty?
Could the Piesident direct Ins Secre-
(ary to remit it?
In the Government under w hich we
live, a power is provided to pass on
the constitutionality of law'. The
President is not that tribunal. Ilis
office is executive. The opinion he
holds of the constitutionality of a law,
(except when called to sign it on its
passage) beholds not officially but as
any other citizen, at his peril; and as
it is his sworn duty to ozccutc the
laws, if lie refuses to execute a law,
for whatever cause, he is guilty of a
high breach of official duty, and com
mits an impeachable offence. It is the
province of this House to hold him to
his duty.
'1 here is no end to the absurd eon-
sequences which would flow from an
opposite principle. To what would it
not lead? If the Pressdent may annul
a law, whirl) he thinks unconstitution
al, .the Secretary may annul another
which bethinks unconstitutional; and
soi may any of his clerks. The clerk
of your House may refuse to carry a
bill w'hich you pass to the Senate, if
lie (liinks it unconstitutional; for in
that case, it is no more a law’, on this
principle, than nn old newspaper. And
if gentlemen contend that they re
serve to the President alone this dis
pensing power of refusing to execute
laws, which in his private judgment
are unconstitutional, (hey merely give
us, instead of the anarchy which
would arise from its being possessed
by all the Executive officers, a per
fect Oriental despotism, produced by
imparting it to one.
Vic have heard a good deal said
about nullification, and no small ap-
probrium attached to the word. Has
it never occurred lo some gentlemen,
willing enough to stigmatize that doc
trine, lhat they themselves have lent
their countenance to the smug doc
trine, not in theory alone, but in prac
tice? Georgia orders a survoy of the
Cherokee lands. The law of 1802
makes it highly penal, to survey lands
belonging or secured to Indian tribes
hv treaty. It subjects thoso who
call out a military force to exeCtfte
the law. The President tells olt con-
cerncd that lie will not enforce the
law, because he thinks it unconstita.
tionnl. Is not tlmt nullification? The
convention of the Judges of Georgia
decide all the Indian treaties to be un-
constitutional. Is not that nullifica
tion? And yet, if 1 mistake not, propo
sitions have been made in the quartet
w here this nullification is practised by
wholesale, to censure the doctrine as
theoretically advanced iu a neighbor
ing Slate.
I have remarked ttyit the direct
way to meet this question would have
been to propose a law abrogating tho
treaties and repealing the intercourse
law of 1802.
But a different course was pursued.
A hill was presented, ably drawn and
carefully worded, so as to leave this
question entirely aside. Although tbo
bill was an integral part ofthe policy
ofthe State, designed to'co-operate'
with it, and in fact built upon it as
upon a foundation, it was so worded
as not, in terms, to afford it any sanc
tion. We were obliged to go to the
President’s Message, and to the re
ports of the committees of the two
Houses of Congress, to ascertain its
character. We did so; ond we di c ss-
cd the policy, as it discovered itself iu
those documents.
But harmless as the bill was in it*
terms, it could not have passed, but
tor the amendment moved by the gen
tleman from Pennsylvania,(Mr. Ram*
SAY,)by which amendment it was pr<£
vtded that|<nothing in this act contort
ed shall he construed ns authorizing
or directing the violation of any trea
ties existing between tbo United
States and any Indinn tribe.’ I was
perfectly well persuaded, at (be time,
that this proviso would be without
pratical effect; but it saved the bill
from being lost; and now from one end
of the continent to the other, this
proviso is held up to show that tho
Indian Bill of last Winter docs not
sanction the compulsory removal of
the Indians; that the treaties are lo
be held inviolate; and that the Indians
are to be protected in their rights;
all the while that il is perfectly noto
rious, as I shall demonstrate before I
tit down, that the Indians aro not to
be protected; that the treaties are
violated; and that this proviso is a
dead letter. .
Hie bill passed, we all remember
how, uudeo (ho severest corn cion by/
the previgns question, that I have ev
er known, applied, too, for tho pur
pose of shutting ont the amendment
ol the gentleman from Pennsylvania.
(Mr. licMPHiix,)the object of which
was to obtain information, in respect
tortile character of tho *ountry, lo
which tlio Indians were to be remov
ed. For I beg it may be recollected,
alter all we have heard ofthe factious
course pursued by the minority, that
all we asked was the adoption of the
nmondment of the gentleman from
1 ennsylvania, which proposed to send
a respectable commission iutothisre-
giou, to see if it he fit for the habita
tion of the fellow-beings whom wo
are driving from their homes, and that
this was denied us.
Still the act seemed to promise
something to the Indians, f 0l - it *borc-
ou its face, that (he treaties wore not
no be violated. The money which it
granted was granted conditionally: the
condition was contained in a proviso;
and, if that proviso were jiot acted
»P ( o> ho appropriation was made,
and no expenditure was lawful.
Just two, or perhaps three day*
alter the passage of the act, the Geor*
gia laws took effect, and went into
operation overall the Indians included
within the nominal boundaries of the
State.
And here I reach n part ofthe sub
ject, on which 1 dwell with great
pain, the legislation of Georgia over
the Cherokees. Il is my dutv to
inquire into the character of the Geor
gia laws, against which our interfer
ence is invoked, ond our protection
demanded. I 6pC ak of the laws of
Georgia individually, and not of the
other States, who have extended their
jurisdiction over the Indians, became
(he legislation of Goorgin is hotter
known. I do not single out her laws
invidiously. Neither do I pretend an
acquaintance with lior whole co<Je.
I have uot seen it. A few Intvs only,
that, from a part of it, havo come la
■my knowledge; lut those nrp sufl|-
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