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tHEKOKEE PH<EMX
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A INDIANS’ ADVOCATE
H8. 80UDIIJ0T, EDITOR.
NEW ECHO T A, SATURDAY SEPTEMBER 10, 1831.
VOE. 3V.-W3 11.
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SPEECH
oj the Hon. Jcibez Huntington. Repre
sentative from Connecticut deliver d
in the House of Representative*, sit
ting as in committee of the whole* on
the bill for the removal of the 1 ilians,
Tuesday, ./1/a y 18, 1830.
J\lr. Chairman: If the oil for which
this has been substituted, i’.ougt)
petiiy identical with it, had been a
companicd hy a report fi -.m the t-om-
miltce, conlined to the •« itement of
facta and principles connected with
what are said to be the objects of the
bill itself. I should not have troubled
the il ouee vvilh any remarks upon it
I would not have, mingled in a debate
which would then have been limited
to the expediency of adopting the
legislative provisions proposed to be
enacted. But as the committee have
reported the bill 1 in conformity with
the suggestions ontained m the report,
and to effect the object recommended
In the message of the Pi esid* nl;” as
that report, and that message, con
tain sentiments with which I do not
accord; as tiiat report, and they ad
vance principles, which in my judg
ment, are not" tenable—prim iples
which, if runderstand them correctly,
deprive the Indian tribes, to whom
they are applied, of rights well de-
<» ' * * aninitaij •• * • . uit«l
fineu, ion® , ... secure..
lien ny me
l^ n .
* com-
irj inn in"oi -
pacts, and the plighted faith of a na
tion, which hitherto has been, and al
ways, I trust, will be, jealous of its
own honor, and which will not set the
example of a Christian nation disre-
g - ding its own engagements because
they have been entered into with a
weak, defenceless, unprotected peo
ple, I have not been willing to give a
silent vole upon the proposition now
before us My own sense of duty,
and the sentiments ol a great portion
of my constituents, who take a deep
interest in* this subject demand of
me, that I should express their opin
ion and mine, on a topic which is con
nected with the honor of our common
country, and the welfare of a race
once powerful, but now weak, and
looking to us with anxiety, but not
without hope, for that protection
which the faith of the government is
pledged to afford.
Before ! enter into the examination
of what are called, in the report,
“the pretensions of the Indians, and of
of tho obstacles w'hicli are consid
ered ns being in the way of
their indulgence by the government ”
I solicit the attention of the commit
tee to the language of the executive,
in his message at tlie opening of the
session, and to the construction or
commentary which "has been put up
on it, in another place. 1 shall ex-
nmine it with all (he respect which
is due to tho chief magistrate of this
»4tion, and to the elevated aud honor
able station which he occupies; but
at the same time, and holding his ad-'
visersresponstble for it, I shall matte
this examination with all the freedom
of a representative of the people,
swornto support the constitution of the
U.S.I noticed with much pleasure, in
the inaugural address of the present
executive, the following expressive
sentence:—“It will he iny sincere &
constant .desire to observe towards
the Indian tribes within our limits a
just and liberal policy; and to give
that humane and considerate atten
tion to their rights, and their wants,
which is consistent with the habits of
our government and the feelings of
our people.” Mow far this pledge
has been observed, will be seen in the
progress or this discussion.
In the message, Congress are in
formed, that the President has been
called on by a portion of the southern
tribes for proteat ion, in consequence
of the extension, by the Stales of
Georgia and Alabama, of their laws
over these tribes; that, in an answer
to this application, he stated to them,
that their attempt to establish an in
dependent government would not be
countenanced by the executive of the j
UnMed States; that il was too late to !
inquire whether it was just for the.
United States to include these In i
dians and their territory within the'
hounds of new Stales, whose limits they
could control; and that they should]
be distinctly informed, that, il they
icrnained within the limits of the j
States, they must be subject to their j
laws. The same opinions are ad- |
vancecl, in the letter of the secreta
ry of the war department to the Cher- !
okee delegation, dated April 18, |
1819, in which they arc told, hy or-j
der of tho President, that the State ,
of Georgia has extended over their ■
country her legislative enactments, in
virtue of her authority as a sovereign, * 1
independent State, whi> h she and
every State embraced in the eonled-
eracy, from 1783 to the present time,
when their independence was ac
knowledged and admitted, possessed
the power to do, apart from any au
thority or opposing interference by
the general government. In these
documents, then, we find the legisla
tion of Georgia and Alabama over
the Indian tribes, within their char
tered limits, sustained, as of right,
and an explicit avowal made, that the
President will not interfere to pre-
oy.nt it. And what is the construc
tion nut unon this Janouuffe.? Not
merely, that the operation oi me
State law’s is not to be opposed, be
cause the guaranties contained in
treaties with the Indians do not re
quire it; not that, it they did require
it, the existing laws are insullioient
for that purpose; hut “because,” as
stated in the report of the Senate by
the committee on Indian affairs of
that body, “in the opinion ol the ex
ecutive, constitutional objections ex
ist, which it is not in the power of
Congress to remove by any law which
they could enact.” If this bo the
right interpretation of the views en
tertained hy the executive, the doc
trine is advanced, that treaties made
with all the forms and solemnities
known to the constitution, ratified by
the President, with the consent ol
his constitutional advisers, and thus
made, so far as the executive branch
of the government can make them,
the supreme law of the land, and de
clared so to be by the constitution,
arc not to he regarded and enforced,
if, in tho opinion of the President,
such treaties contain provisions incon
sistent with what he considers ihe
legitimate rights of the slates; or,
expressed in other words, if the exec
utive deems a law of Congress, or a
treaty duly ratified, to he an en
croachment upon state lights, or for
any other reason an excess of delegat
ed power, lie is at liberty to refuse
his aiil in causing them to be “faith
fully executed.” Is this a sound in
terpretation of the duties which the
constitution has devolved upon the
President? Is he made the judge of
the extent of the powers of Congress,
or the treaty-making power, after
that power has been exercised in the
manner prescribed by the constitu
tion? Has he been constituted, in
such cases, a judge to determine whe
ther treaties ure constitutionally bind
ing? whether laws w'hicli have been I
make this interference ol little,- if any
use; looking very much like “keep
ing the word of promise to the ear,
and breaking it to the hope.” It is
in these words: “yet, in doing tins,
the right of permitting to you the en
joyment of a separate government
within the limits of a stale, and ol
denying the exercise o; sovereignty
to that state within her own limits,
cannot he admitted. It is not wi'li-
enacted are void, for want of power j in the range of power granted by the
to enact them? If so, there seems loj states to the general government, and
be no necessity for the clause in the | therefore not within its competency
constitution, which provides, that to be exercised. No remedy can be
“the judicial power shall extend to perceived but a removal beyond (lie
all cases id law and equity arising un-1 Mississippi, where alone can be as-
der the constitution, the laws of the ; sured to you protection and peace.—
United Slates, and treaties made, or
which shall be made, under their au
thority.” If so, there is no division
of the* department of tins government
into executive and judicial; the lat
ter, for all practical purposes, is an
nihilated, and the provision, that a
bill which has been returned by the
President with objections, reconsider
ed, and then approved hy tno thirds
of both houses of Congress, shall be
come “a law,” is a dead letter. The
President, if he can lawfully refuse
to execute a law, or enforce the pro
visions of a treaty, because he has
constitutional objections or scruples,
constitutes himself the executive and
judicial departments of this govern
ment. Such, in rny judgment, is not
this prerogative; and I believe it is
tile first time in the history of this
notion, since the adoption of the con
stitution, that opinions like these have
been advanced. Sure I am that
they were not tho opinions of any of
his predecessors, or those wise men
who framed the constitution, or of the
people of this country; and I have
deemed it indispensable to advert to
them, lest it might be thought, from
silence, (hat they met with univer
sal approbation. The executive lias
no constitutional right to say he will
not execute a law, because he con
siders it void for want of authority to
enact it. No such discretion has
been confided to him; I trust it will
never will be; and if his scruples are
such as to deter him from-enforcing
it. let him resign the trust confided to
him. This is the only course he can
adopt, under such circumstances.—
The legislative and judicial depart
ments are powerless, and (lie govern
ment is a rope of sand.if such opinions
are entertained and acted on. Eve
ry law may depend for its execution
u id? the wSi! the executive; and,
in These days ofslrici construction, il
may be feared that few legislative en
actments will pass unhurt through
this ordeal of presidential discre
tion.
Having thus, very briefly, adverted
to the opinions entertained, and avovv-
id hy the executive in regard to “pre
tensions'” of the Indian tribes, on the
supposition that tho construction of
the treaties made with them, and the
laws enacted to regulate the inter
course with them, is correct, I pro
ceed to consider the great questions
involved in this discussion.
The report denies to the Indian
tribes any title whatever to the lands
which they occupy within the char
tered limits of any slate; and asserts
a right in the states, in which they
are located, to extend their legisla
tive enactments over the Indians, and,
consequently, a power to annihilate
their political existence, as commu
nities to he governed by their own
law’s, usages, and customs. Nor does
the executive, in his message, ac
knowledge any title to the lands, as
subsisting in the tribes.
In the letter from the war depart
meat, before referred to, the secre
tary savs, “an interference to the ex
tent of affording you protection, and
(lie occupancy of your soil, is what
is demanded of the justice of tjiis
To continue where you arc, within
the territorial limits of an independ
ent state, can promise you nothing
but interruption arid disquietude.”—
And the President, in his message,
speaking in reference to the same
tribes, says, though their “emigration
should bo voluntary, yet il seems vi
sionary to suppose that claims can be
allowed on tracts of country on which
they have never dwelt nor made im
provements, merely because they
have seen them from the mountain, or
passed them in the chase.” It will
be observed, that this language is
spoken of the Cherokecs, who have
dwelt on and improved their lands,
and seems, at least, to imply that they
have no title to the lands within then
boundaries. But it is unnecessary to
make further reference to the mes
sage. I shall content myself with
referring to the report, and, so far as
I am able to comprehend it, there is
no acknowledgement of any title, in
the Indian tribes, but the spirit of
every part of it is utteily at war
with any such acknowledgement.
The committee say, (p. 4,) “It is
certain that possession, actual oi con
structive, (if the entire habitable por
tion ol this continent, was taken by
the nations of Europe, divided out,
and held oiiginnliy, by (he light of
discovery as between themselves,
and hy the rights ol discovery and con
quest as against the aboriginal inhab
itants. The pretensions of the In
dians to he the owners of any por
tion of tho soil, were w holly disre
garded by the crown of England.”
Here the opinion is advanced, that
the crown, by discovery and conquest,
obtained either the possession, or
right of possession of the whole
of the soil then and now cocu-
pied by Indian tribes, and admit
ted no right in the.*e tribes to any
portion of it. The title and the pos
session bei.i# (bus in (he crotvn, il
permitted the Indians, in all of them,
to be governed or otherwise disposed
of by the colonial authorities, without
any interference on its part, until
within a short period before the rev
olution. And in all the acts, first of
the colonies, and afterwards of the
states, the fundamental principle that
the Indians had no right, hy virtue of
their ancient possession, either of
soil or sovereignty, has never been a-
bandoned, either expressly, or by
implication.
Tho principle was adopted (p. S.)
that the Indians had no permanent in
terest in their hunting grounds; their
right to hold their reserved lands can
be supported on no other ground than
the grant or permission of the sove
reignty or state in which such lands
lie. This was in the crown before
the revolution, and in tho stales af
ter that event, succeeding, as they
did. to the sovereignty over all the
lands within the limits of their re
spective charters. The Indian boun
daries were considered temporary.—
i'he treaties made with theme, were
hut a mode of government, and a sub
stitute for ordinary legislation, which
were from time to time dispensed
with, (p 12.) Territory and juris
diction, considered in reference to a
er; and as a state cannot exist v\ Kn
out territoiy, the limits ol that tent-
tory are, at the same time, the lim
its oi it8 jtmsuicliou. ’t he policy of
Ceorgia (p. 13 y bus always be« o, io
contract tlie I mu an reservations, grad
ually, within such reasonable lun.is,
that no part ol the country should , e-
main uncultivated. tHer polity m
(Ins respect was a pait of her rignts;
anv Miiug which lends to defeat ns
operation, is a deprivation of ri lit.
It is understood that neither Georgia,
no? any other state, w ill attempt to
appropiiate the lands within the In
dian ies*MVationsw ilhout theirconscnt.
Can it be doubled, alter these
quotations, that the report denies to
the Indians the right both of sove
reignly and soil? It would seem not:
and, supposing this to be its mem i g,
amt as expressive of the opinions of
the committee, which we are called'
upon to adopt or reject, 1 proceed to
an examination of the nature and ex
tent of the Indian title to the lanu*-
within their boundaries.
In iny judgement, neither of the
positions assumed by the committee
in their report is tenable. I think it
capable of demonstration, that the
fight of the Indian tribes to the ian.ls
which they occupy is paramount to*
and exclusive of all others, whether
nations, stales, or individuals; it js a
right to occupy, enjoy, possess and use,
according to their own discretion, in
definitely aud forever; and, for all
practical purposes, is absolute. The
only restriction is that of alienation at
pleasure. This power of alienation
is not. and cannot he elairhed bv these
tribes; for the right of discovery, hi
the first instance, and the voluntary
compact of the tribes afterwards,
gave to the government of the United
States the ultimate title, charged
with the Indian right of Jiossession^or
occupancy, and the exclusive power
of acquiring that right. In other
w’ords, the Indians have sole right of *
occupancy. To that they have a just
and legal light, and it includes the
use, in such manner ad they please,
and is indefinite in duration, and of
which they cannot l;e dispossessed,
except by cession or conquest. The
government have the exclusive right
ol purchase, and the ultimate right,’
whenever the possession becomes vu-'
-ant, by voluntary dereliction, or by
the extinction of the tribes.
I think, also, it call be shown, that
these tribes ore separate, disti.nt.
communities, wholly independent of"
the slates; not subject to their legisla
tion, and possessing the light of self-
government—the right to he govern
ed by their own laws, customs, and'
usages; and under no restraints, ex*
ccpt such as they have imposed upon
themselves, in their treaties with the
United States.
The foundation of their title is oc
cupancy. They have been in posses
sion. claiming the right to the soil,’
from our first knowledge of them.
They were found here, when this
,country was discovered. They, and
they only, have possessed it; and this
occupancy lias been from time im
memorial. Writers on jurisprudence
agree in the proposition, “that the'
Original right to all kinds of property
arose from prc-oecupsncy, and that,
in a state of nature, every one might
possess himself of and retain any va
cant subject. ' The first occupant
had a right to grant, cede, or trans
fer, the subject he had possessed him
self of, to such persons, and upon
such terms, as lie thought proper;
and if. before such grant, cession,
or transfer, the occupant died, hit
property descended to his children.
The r*v lit of transmitting property
always resided in the owner, and civ
il institutions only prescribe the mode
of carrying that right into effect. In
that period of society, when the coun
tries were formed, and their bounda
ries fixed, we find that different dis-
eonntry, and will not he withheld;” | state or nation, are inseparable; the
though he adds what would seem to j one is a necessary incident to the otli-|trioU ware appropri&ted to the at*-