SENATE.] The Indians. [APRIL 15, 1830. is to be found, we are discussed without measure, and ed for and grossly inconsistent censures of the British minabused without mercy. This is not all; we are important ister. I traced, yesterday, the history of the execution of enough to attract attention in transatlantic assemblies. the compact of 1802 to the period when the Creek tribe The Chapel of St. Stephen's has lately resounded with was removed from our territory. The Cherokees, havthe name of Georgia. On the discussion of the question ing been foiled in their efforts to control the Creek moveof universal suffrage, we have been quoted and condemn-ments, sought to strengthen themselves in their position, A few white ed by a minister of imperial Britain; the minister of a by forming and publishing a constitution. Government whose diplomatic records are disgraced by men and half-breeds were the authors of this scheme-a compacts to monopolize the horrible profits of the slave scheme hateful to many of the Indians, who desired to trade; the records of whose legislation are stained by acts counteract it. The half-breeds and the whites, having to legitimate and regulate that hateful traffic; the minister the funds of the tribe, were able to retain the power in of a Government which has but just emancipated a large their hands, and they proceeded to convert citizens of the portion of its subjects, distinguished for wealth, intelli- United States into Cherokees, by the short and simple gence, and integrity, from odious political and civil disa- process of marriage or adoption. This decisive evidence bilities, founded solely on the color of their religious of the intention of the Cherokees, to perpetuate themcreed; the minister of a Government, a company of whose selves as sovereigns within the sovereignty of Georgia, atmerchants owns an empire of slaves; an empire gained by tracted the immediate attention of the Executive of the a succession of crimes, black enough to make the sun turn State. Transmitting a copy of the Cherokee constitution pale, were its blessed beams affected by human turpitude; to the President of the United States, and calling to his rethe minister of a Government, in whose colonial depen- collection the provision in the constitution which forbade dencies a black man is delivered over to the discretion of the erection of any new State within the jurisdiction of any his master, and torture and death inflicted upon him is other State, and the formation of any State by the junction estimated in pounds and shillings, has had the effrontery, of two or more States, or parts of States, without the conin the face of the British nation, and of the world, to up- sent of the Legislatures of the States concerned, as well as braid Georgia for enactments to prevent the danger of of the Congress, inquiry was made what measure had been servile insurrection; a danger to which we are exposed adopted, or was contemplated, to vindicate the outraged by the peculiar character of a part of our population-a sovereignty of the States of North Carolina, Tennessee, population fixed upon us by the avarice of Britain's self. Georgia, and Alabama. This inquiry was not deemed worThe reproach was worthy of its author. A minister of thy of an answer. The respect due to the State not being the House of Brunswick, with the principles of a Jaco strong enough to tempt the Executive of the Union to direct bite; the virulent opponent of Catholic emancipation, his mind to this subject, an inquiry was made in the House while opposition was consistent with the retention of his of Representatives by Mr. WILDE, of Georgia. The replace in the ministry; the eloquent advocate of Catholic solution of inquiry was offered on the 21st of February, emancipation when place was in danger, was true to 1828, modified on the 22d at the suggestion of Mr. himself and his vocation, whilst censuring one of the STORRS, of New York, laid on the table on motion of Mr. States of this republic. We may live, sir, to see this op- WICKLIFFE, of Kentucky, taken up on the 29th, modiponent of universal suffrage its advocate. If the great fied by Mr. WILDE, who introduced it, laid on the table captain should again give the word of command," to on motion of Mr. STORRS, taken up and passed on the the right about face," we may hear of a splendid argu- 3d of March. The answer to this resolution disclosed ment, founded upon the safety and tranquillity of the em- these facts: that the Cherokee constitution had been compire; we may see recorded, opinions abandoned for place, municated to the War Department in November, 1828, in favor of universal suffrage. Should this second mira- by the commissioners Cocke and Davidson: by the Gocle be worked by the conqueror of Waterloo, I trust we vernor of Georgia, in January, 1829, with his letter of shall be spared the praise of the convert. His censure inquiry; but, that the honorable Secretary had not found we shall bear without resentment. His praise would be leisure to give his attention to this subject, until the 23d intolerable. But, sir, what does the wretch deserve, of February, 1829, two days after the call for informawho, copying into the columns of his newspaper, in this tion was proposed in Congress. The letter of the Secrecountry, the discussions of Parliament, adds to this speech tary to the Cherokee agent bears date on that day. Had of the Home Secretary, part only of the reply of the not the resolution of inquiry been accidentally delayed in great leader of the opposition, to induce a belief that the its progress through the House, the Secretary would have opposing champions united to pour out the vials of their had no time to devote to the subject until after Congress wrath upon our heads in one undivided stream; when, in had acted upon it. But what was the determination of fact, the great advocate (Brougham) although condemn- the Government, as disclosed in this extorted letter from ing the spirit of our law, pointed, in marked terms, to the Secretary to the Cherokee agent? The agent was d the necessity of our condition, and taunted his adversary rected to inform the Cherokees, that the formation of with the inconsistency of his condemnation of the Georgia their constitution would produce no change in their relalaws, while the atrocious code of Jamaica was suffered to tions with the United States. The effect of this Delphic remain in force? The truth, the whole truth, suits not answer on Georgia and the Cherokees might have been, the purposes of editorial malignity. They understand and no doubt was, anticipated. The Cherokees underhow to suggest falsehood, by the suppression of truth, stood the response of the oracle as favorable to their when the object is to deceive, by making a false impres- wishes. The State understood that the administration sion upon the public mind. If we should feel a strong had resolved not to interfere; to leave the Cherokees to indignation at these, and similar efforts here, to prejudice make the most of their case before the tribunal of public the public mind; to degrade the character of our State; opinion; to aid them, if aid should be found popular; in if, under the influence of this indignation, we should no event to act with Georgia, unless controlled by cirpour out our souls in torrents of bitter invective against cumstances. our artful opponents, we might hope to stand excused before the throne of the Giver of life. Erring man, the child, and, but too often, the victim of passion, could not condemn us. Thus, after the lapse of twenty-eight years, after large pecuniary sacrifices, and the more important sacrifice of political consequence, to avoid irritating and perplexing questions between the State and Federal Government, we But, sir, I must not be withdrawn from my purpose, by found ourselves compelled to submit to the intrusive the dishonorable artifices of editors of Amer can newspa- sovereignty of a petty tribe of Indians, or to put it down pers, by the arts of Senatorial ingenuity, or by the uncall-by our own authority, without the aid, and probably : APRIL 15, 1830.] The Indians. [SENATE. "Domine Deus, Æterne et Omnipotens, qui sacro tuo verbo, et cœlum, et terram, et mare creasti; benedicatur et glorificetur nomen tuum, laudetur tua majestas, quæ dignata est per humilem servum tuum, ut ejus sacrum nomen agnoscatur et prædicetur in hac altera mundi parte.” against the wishes, of the Federal administration. Every angels or gods to be welcomed and adored. The first hour's delay would have strengthened the claims of the act of the Castilian admiral was an act of devotion. The new Government, and prescription and acquiescence symbol of his faith was erected, and amidst these wonderwould have been pleaded against us with zeal and effect. ing children of nature, this first prayer to the true God The subject of extending the laws of the State over the was lifted up in the Western world: Indians was presented to the Legislature by the State Executive. To give time to the Federal Government to fulful its compact, by the extinguishment of the Cherokee claim to the land, and thus cut up the controversy by the roots, and to apprize the Indians, who were about to become the subjects of the State laws, of the intention to After blessing and glorifying the name of God that he act upon them, it was proposed to make the enactments had designed to make him the humble instrument of causprospective. The expediency of this measure could not ing his holy name to be known and preached in this new be doubted, and the only difficulty felt was on the question world, how did the great navigator, distinguished as he of power. We did not suppose it possible that any states- was by his superior intelligence and humanity, treat the man in this country would deny that the Indians within untaught children of nature? Provisions necessary for our limits were under the discretionary control of the his crew were at first voluntarily offered by the inhabiCongress of the United States, or of the State Legisla- tants. When no longer voluntarily offered, they were ture; and had not the arguments used here been founded procured by artifice, by playing upon their ignorant fears. upon the original right of the Indians to the soil and sove- When artifice did not succeed, they were taken by force. reignty of the country, I should not trouble the Senate Without their consent, forts were erected on the territory with any inquiry going farther back than the constitution occupied by Indians; and power, as far as it was politic, of the United States. The honorable Senator from New Jer- exercised over them. When the Admiral returned to his sey claims that the Cherokee Indians were, ever have been, country, it is asserted that he lost, for a season, the favor and ever shall be, the owners of the soil, and independent of his illustrious patroness, Isabella, the heroism of whose of the Government of the State and of the Union; and he character was equalled by the loveliness of her person denies that the European discoverers, particularly the and the tenderness of her heart, by carrying as slaves English, ever claimed or exercised the right to legislate some of the inhabitants of the new world to Spain. The directly over the Indians, as their dependents or subjects. wretched inhabitants of the newly discovered lands soon The European doctrine of the right conferred by the dis- found severe teachers of the religion of peace. The name covery of new countries, inhabited by barbarous tribes, of the Saviour of mankind was belched forth in thunder was, I thought, well known. The discoverer claimed the from the mouths of those dreadful fiery engines that scatSovereignty over the discovered country, and over every tered dismay and death through their helpless ranks; it thing under, upon, and above it, from the centre to the broke upon the devoted race in the deep tones of the fuzenith. The lands, the streams, the woods, the minerals, rious bloodhounds, baying at their heels, as they fled all living things, including the human inhabitants, were through the fastnesses of the mountains, where they all the property of, or subject to, the Government of the sought in vain a refuge from torture and death. The fortunate navigator, who, by accident or design, first saw dreadful ravages committed upon this kelpless people the before unknown country. Such were the doctrines of called for the interference of the Government of Spain, Spain, England, and France. Portugal claimed under a and oppression and cruelty were reduced to system by the Papal bull, which conferred upon the crown empire and repartimientos" and "encomiendas" by Spanish legisdomain over every country newly discovered on the globe, not possessed by Christian people. This Papal title was The Indians were divided among the Europeans, and in perfect unison with the prevailing sentiments of an age, recommended for instruction in the doctrines of Christianin which the decrees of the Roman Pontiff made and de-ity. Forced to unnatural labor, starved, and tortured, throned kings, established and overturned empires. All they died, but died not in the Christian faith. They reChristendom seems to have imagined that, by offering jected with scorn the priestly promises of eternal joy, that immortal life, promised by the Prince of Peace to fal- turned their eyes from the holy cross, and expired, exlen man, to the aborigines of this country, the right was pressing an abhorrence of that place of happiness in the fairly acquired of disposing of their persons and their world to come, into which Spaniards could be permitted property at pleasure. A few examples from the history to enter. Passing by the Portuguese, the polished French, of the discoveries and settlements will show the prevalent and manly English, what did they? The Island of St. opinion of the day. The great Columbus, equipped by Christopher's was settled in conjunction by the subjects of Spain, came authorized by Ferdinand and Isabella to take these great rivals. No Spaniard had ever fixed himself all newly discovered lands for the crowns of Castile and upon it. The French and English were permitted to gain Leon; if successful, as his reward, plenary powers were given to him over the country and people discovered, and a large share of the profits to be derived from them promised. This grant was not extraordinary, from sovereigns who considered war with infidels, and their forcible conversion to the true faith, or expulsion from their country, as part of their Christian duty. The great discovery was made; Guanahani was found. Our imaginations have been inflamed by eloquent descriptions of this event. The gazing crowd of enraptured savages watching, on their sunny island, those vast bodies on the ocean, that, with sails spreading to the breeze, like the white wings of an enormous bird, came careering to their shores; the gaudy Europeans, pressing around their illustrious leader, splendidly attired, and moving to the sound of martial music, in all the imposing pomp of civilization, to the promised land; the savage islanders looking upon the strangers, not as men to be watched and feared, but as tion. 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 male, 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 Providence, which had swept away whole tribes of Indians by pestilence, in order to furnish, without expense or force, a country for a few persecuted whites from the fast anchored isle. Abandoning farther recital of acts which may be considered unauthorized by governments, let us see what were the doctrines of the English Government, to whose power we succeeded, and upon whose opinions we act. What do the grants of the Kings of England to the various proprietors contain? Ample, conclusive, and exclusive transfers of sovereignty SENATE.] The Indians. It [APRIL 15, 1830. and domain, subject only to the reserved rights of the chases from Indians for the Crown, not then within the Crown, over all the territory described in the grant, and all boundaries of particular colonies, or that should not be the persons upon it. The proprietors exercised, at dis- within their boundaries when some of them might be recretion, eminent domain, and when they surrendered their duced to more convenient dimensions. These were the governments, and colonial governments were established powers proposed at Albany to be given to the Union, by in their place, the colonial governments exercised, under the unanimous approbation of the Commissioners from the like restriction, the same power. The Indians were New Hampshire, Massachusetts Bay, Rhode Island, New considered incumbrances upon the territory granted to the Jersey, Maryland, and Pennsylvania. It is to the reasons proprietor, or subjected to the colonial government, and assigned for granting these powers to which I invite attenthe mode of treating them was altogether discretionary.tion. As to the power of peace and war with Indian naTheir good will was purchased by trifling presents, by tions, it is alleged in the report of this plan of the Union, poisonous potations; when these means were insufficient, (Carey's American Museum, vol. 5, pp. 287 and '8) that as they usually soon ceased to be, disputes arose about was supposed to be in every colony, and was expressly trade, mutual depredations were committed, and the sword granted to some by charter, so that no new power was acquired what could no longer be obtained for a nominal intended to be granted to the colonies. As to purchases price. The whole of Rhode Island was bought for fifty of Indian lands, it is said, private purchases are inconvenifathoms of beads. No proprietor or government ever ent, and lead to wars. Public fair purchases would predreamed of resting a claim to title upon a purchase from vent wars. "It is much cheaper to purchase of them the natives. An appeal was always made, in case of dis-(the Indians) than to take and maintain the possession by pute, to the patent from the Crown. Such was the course force; for they are generally very reasonable in their deof William Penn, in his controversy with Lord Baltimore. mands for land; and the expense of guarding a large fronA few facts in relation to Pennsylvania will instruct the Se-tier against their incursions is vastly great; because all nator from New Jersey as to the true light in which the must be guarded, and always guarded, as we know not Indians were viewed by Penn, whose conduct to the In- where and when to expect them." The discretionary dians is considered as the beau ideal of justice and human-power in the States to take Indian lands, and maintain posity. Colden's History of the Five Nations contains a session by force, is here distinctly asserted; but purchase speech of Canassatego, a chief of the Six Nations, to the is recommended as the cheaper mode of quietly enjoying Governor of Maryland, in 1744; he complains that the In-the lands granted by the Crown. Peace and war with Indians, deceived by the Governor of New York, conveyed dian nations were made by the colonies at pleasure. The their land to him, in trust, to keep it safe from the Dutch, plan of the Union not being approved in Great Briand that the Governor sold it, afterwards, in England, to tain, was abandoned by the colonies. To remedy some their beloved Onas. Penn had long desired to free this of the evils arising in the management of colonial af land from the incumbrance upon it, but the Indians would fairs, the royal proclamation of 1763 was issued. not sell. What did Onas in the matter of this flagrant was with unfeigned surprize I heard this proclamation fraud? No doubt he gave them back the land, and held quoted by the Senator from New Jersey as a proof that the Governor of New York answerable for the purchase Great Britain never asserted its right to legislate for the money. He kept the land, and gave the Indians some savages, or to appropriate, without a previous purchase, trifling presents as peace offerings for the deceptions prac- their lands. tised upon them, and thought he acted justly and gene-serts: rously. A law of Pennsylvania, of 1771, exhibits, in a still stronger light, how sacredly regardful the successors of the Founders of the City of Brotherly Love were of Indian titles and Indian rights. In common with other lovers of sobriety, the Legislators of Pennsylvania forbade Thirdly, that the right to appropriate the land occupied the sale of ardent spirits to Indians, in any larger quantity by the Indians resided in the Crown. It contains grants than one gallon, under a penalty of twenty pounds, half to the whites, and reservations to the Indians as hunting to the Government, the residue to the informer. They grounds. did not, like the good people of Connecticut, authorize Fourthly, that it was expedient to reserve the ground the offending liquid to be taken from the poor Indians and West of the sources of the rivers named in it, for the pregiven to the poor whites, but the sale of it was forbidden, sent, to the use of the Indians. "to prevent the Indians from being debauched by rum, and cheated of their peltry." This praiseworthy act contains this humane and wise exception: "Provided always, That the Governor and Council, or persons by them authorized to hold treaties with any nation of Indians, may, at The laws and usages of the different colonies throw such treaties, give any reasonable quantity of rum, as by additional light on this point, if any were required, after them shall be thought necessary," &c. To debauch the the assertions of authority contained in the proclamation Indians with rum and cheat them of their land was quite of 1763. In war, the Indian never was treated as a civila Government affair, and not at all criminal; but to ized enemy; the males were put to death on the principle use rum to cheat them of their peltry, was an abomina- of retaliation, and the women and children sold into slavetion in the sight of the law. Clear and definite ideas may ry, for the benefit of the captors. In Massachusetts, rebe formed of the opinions entertained throughout this wards were offered for captives, and pecuniary induceAnglo-American part of this continent, by an examination ments held out to encourage the breed of dogs found useof the powers proposed to be given to the union of the ful to go out with the hunt-serjeant, in pursuit of Indian colonies contemplated in 1754, over Indians and Indian rebels. In Virginia, Massachusetts, Connecticut, Marylands, and the reasons assigned for vesting some of them land, Pennsylvania, North Carolina, and South Carolina, in the Union. It was proposed to vest in the President laws were passed, yet on their statute books, [some of General, with the advice of the Grand council of the them have just been re-published by the House of RepreUnion, power to hold or direct all Indian treaties in which sentatives,] to regulate, to protect, and to punish Indians. the general interest of the colonics might be concerned, So stood the question of power over the Indians when and make peace or declare war with Indian nations; that the Revolution began. On the Declaration of independthey should make such laws as they judged necessary for ence, the States, respectively, took upon themselves all regulating all Indian trade; that they should make all pur- the authority Great Britain ever exercised, or claimed to I ask the Senator to examine it. It as First, the sovereignty and dominion of Great Britain over Indians and Indian territory. Secondly, that the Indians were, as subjects, under the protection of the Crown. Fifthly, that the lands East of the sources of those rivers, part of which was then actually occupied by the Indians, should be granted at the discretion of the proprietary or colonial authorities. APRIL 15, 1830.] The Indians. [SENATE. exercise, within their limits. The Indians were at their to be exercised, of incorporating the Indians as a part of discretion; and whether they were managed by direct their political system, by legislation, is distinctly recogenforced legislation, or by voluntary contract, no other nized; when exercised, the power of the Confederacy Government could interfere between the State and the ceased. Over those not incorporated, the power granted Indians residing within its territory. The acknowledg- was to be exercised without infringing or violating the ment of independence, and the definitive treaty of peace, legislative right of any State within its own limits. There gave to us all that we desired, in the surrender of the was a practical construction of this clause in November, claims of the nation, previously the acknowledged owner 1782. The Catawbas, residing in South Carolina, applied of the country and the people. In that war, these savages to Congress for redress of alleged grievances. A recombecame the allies of Britain, and were, with her, conquer- mendation to South Carolina to take such measures for ed in the struggle. We claimed them as our dependents, their satisfaction as the legislature of South Carolina should not only by the title surrendered by Great Britain, but of think fit, was the only redress obtained from Congress. that obtained by victory in frequent and bloody battles. No doubt justice was done by the State, as it would have The Senator from New Jersey does not think we con- been, had the application been made, in the first instance, quered Britain, as we are not entitled to claim Canada to the State Legislature. States been delegated by the constitution? It distinctly appears, by the first article of the constitution, that Indians, when taxed, are a part of the State population, and increase 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 that article and in this clause: "Congress shall have power to regulate commerce with foreign nations, between the States, and with the Indian tribes." To the Confederation was given power over all Indian affairs that could be exercised, without encroaching upon State sovereignty. To the Federal Government is given the power, 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. and the other dependencies of the British Crown. Cer- If I am not deceived, there is nothing in the articles of tainly we were not conquered by Britain. What we fought confederation that touches the power of a State to legisfor, we maintained, and it was finally surrendered to us- late for the Indians within its limits. All the acts of State all the rights of sovereignty and domain to the territory legislation, to which I have already alluded, operated formerly held as colonial possessions by Great Britain, while the confederation existed. With one, only, of these, then forming the confederacy of the United States. We will I trouble the Senate--the act of Pennsylvania, of 1744, never claimed Canada, nor any other British dependency. for the speedy trial of capital offences committed by any The right of sovereignty and domain covered the claim Indian or Indians in the remote parts of the province. of legislation over the Indians, and of title to the land [Mr. F. read the act.] It is not to be denied, that the occupied by them. power of controlling the Indians by legislation was posThe acknowledgment was made to the United States, sessed and exercised by the States subsequent to the and the treaty of peace formed with the confederation. Revolution, as it had been by the colonies prior to that Is there any thing in the articles of confederation which event. The constitution of the United States produced deprives the individual States of any portion of their very important changes in the condition of the State soveSovereignty over Indians or Indian lands? The confede- reignties. One thing is guarded by special provision--the ration, nine States consenting, could make treaties. Al-powers not delegated to the United States, nor prohibited though frequent contracts were made with Indians, and to the States, are reserved to the States respectively, or were called treaties, it never was considered that the to the people. Has the power over Indians within the power to interfere in any manner with the Indians in a State was comprehended within the treaty-making authority granted to the Confederacy. The conclusive evidence of this assertion is the resolution of the old Congress, directing treaties to be held with Indian tribes, whenever a majority of the States ordered them to be held-a gross and manifest usurpation, if founded on the treaty power. That it was not so intended is obvious by referring to the special grant of authority, in these words: "The Congress shall have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians, not members of any of the States; provided, that the leg slative right of any State within its own limits be not infringed or violated." It would be the height of absurdity to suppose, that this clause ever would have been incorporated with the articles of confederation, if, under the power to make treaties, treaties were intended to be made with Indians. It would have been granting all The Federal Convention met on the 14th of May. Up power over a subject to the Confederacy, and then grant- to the 18th of August no proposition was made to grant ing a special power over the same subject, clogged with any authority to the Government about to be created over limitations and restrictions. Under this clause, the power Indian affairs. On that day, powers, in addition to those of the confederation was claimed and exercised. The previously agreed on, were proposed to be given to the report of the committee of Congress, in 1787, quoted by Congress of the United States. Among these was "to the Senator from New Jersey, is founded on this clause, regulate affairs with Indians, as well within as without the not on that authorizing treaties. That report is not enti- limits of the United States." [Journal of the Convention, tled to respect as an authority, however it may be used as p. 260.] With other propositions, this was submitted to argument, as the opinion of the members of the commit- a committee, who reported on the 22d August, that the tee, Messrs. Keary, Carrington, Bingham, Smith, and clause in the constitution" to regulate commerce with Dane, of Beverly, Massachusetts. It was never adopted, foreign nations, and among the several States," should be nor even discussed, in the old Congress. As matter of amended by adding the words "and with Indians within opinion, it sustains State claims to jurisdiction over all the limits of any State not subject to the laws thereof." things and persons upon Indian territory, save only the [Idem p. 277.] On the 31st August, this amendment, Indians-a distinction neither supported by reason, nor with others, was referred to a committee formed of a memfounded on any principle of national law; it admits the ber from each State present. [Idem p. 318.] On the 4th power of the State to make the Indian tribes members of of September, that committee reported that, in their opinthe State. The clause in the articles of confederation is ion, the second clause of the first section of the seventh sufficiently explicit, without looking to the glosses upon article of the constitution ought to be amended, by adding it. The old Congress had, under this clause, no autho- at the end, and with the Indian tribes." This amendrity to regulate trade or affairs with Indians, members ment was adopted on the same day. [Idem pp. 320, 324, of any State." The right of a State, then exercised, or 325.] The convention then refused to give the new Go 66 SENATE.] The Indians. [APRIL 15, 1830. vernment the power to regulate all affairs with the In-States. The right of the United States to contract with, dians, either within or without the limits of a State. The or legislate for, the Indians, beyond the States, is not deconvention refused to give the power to regulate com- nied; it is a necessary consequence of the controlling pow merce with Indians within the limits of any State not sub-er of the Government over the territories of the Union. ject to the laws thereof, but gave it power to regulate com- That the President has made, with the advice and consent merce with the Indian tribes. The fair conclusion is, of the Senate, various contracts with Indians, and called that the Congress were not intended to have any special them treaties, is not to be denied. That various contracts authority over Indians within a State, subjected to State have been made with Indians, by States and individuals, laws. If their separate existence as a tribe is destroyed under the superintendence of the United States, is cerby State legislative enactments, the control of the Govern-tain; they have been submitted, too, to the Senate, voted ment of the United States, even over the commerce with upon as, and have been called, treaties. What I assert is, them, is at an end. When members of a State, paying that these instruments are not technically treaties, supreme taxes, they are enumerated as a part of the representative laws of the land, superior in obligation to State constitu population; they are, as such, answerable to the United tions and State laws. Can it be believed that the stern States only, as other members of the community. The jealousy of the State Governments gave to the United acts passed in execution of this power, although founded States the power to use a miserable fragment of the popu upon the mistaken assumption that the authority of Con-lation of a State, to extend, indefinitely, their authority, gress was not limited to the single object of regulating and narrow that of the State Government? The words of commerce with the tribes, but extended to any intercourse the constitution must be, indeed, clear, to reconcile us to with them, have, nevertheless, all contained the acknow- this absurd belief. The tenth section of the first article ledgment of the State power. All Indians within the or- of the constitution proves that the Indian contracts were dinary jurisdiction of the States, and surrounded by white not in the contemplation of the convention, when the treainhabitants, are expressly excepted from the operation of ty-making power was discussed. By the seventh article, the intercourse laws, and the State Executives are vested already quoted, it is shown that a distinction is made beby them, equally with the Executive of the United States, tween foreign nations, States, and Indian tribes. Indian with authority to permit white persons to pass into and tribes are not, in the terms of the constitution, foreign throughout the Indian territories. Under this construc-nations or States. The constitution gives to the President tion of the constitution, the States of New England, the and Senate the power to make treaties-the prohibition States of New York, of Maryland, of Virginia, of South to the States of the exercise of this power, covers, necesCarolina, in relation to the Catawbas, have continued to sarily, the whole power granted. Let us see what this exercise the same legislative authority over their Indians prohibition is. It is divided into two classes: "No State as prior to the establishment of the new Government. No shall enter into any treaty, alliance, or confederation." difficulty has occurred, no question has been raised. What This prohibition is absolute: treaties, alliances, and conis remarkable is, that in not one of those States, until federations, if made, must be made by the United States. within the last ten years, have any of the Indians been The other prohibition is conditional: "No State shall, fairly within the meaning of the first article of the con-without the consent of Congress, enter into any agreestitution, or been embraced by the provisions of the inter-ment or compact with another State, or with a foreign course laws. In none of these States have the Indians Power." A contract made between the United States and paid taxes; in none have they been, until lately, within individuals or corporations, is not a treaty; a compact by the ordinary jurisdiction of the State. One act of the State with State, or by the United States with a State, is Legislature of New York, passed April 12, 1822, is wor- not a treaty. How, then, can a contract made with a petthy of notice, as an evidence of the undisputed power of ty dependent tribe of half starved Indians be properly State legislation, and of the necessity for its exercise. An dignified with the name, and claim the imposing charac unhappy creature, an old woman, was executed by the ter of, a treaty? Now, sir, if a contract with an Indian Senecas for witchcraft. The executioner was tried, con- tribe is not a treaty, alliance, or confederation, but is a victed, and condemned, in the courts of criminal jurisdic-compact or agreement, the State Governments can make tion in New York, although the act was committed on the them at their pleasure, without the consent of Congress; Seneca lands, and in obedience to the usages and customs that consent is required only for agreements or compacts of the tribe. The Legislature pardoned the offender, the made with another State, or with a foreign Government. instrument of the tribe; at the same time, to prevent a This is no trifling verbal criticism; important consequenfarther disgrace to the State by the commission, within its ces are deduced from this abuse of the word treaty. sovereignty, of similar atrocities, the Legislature enacted Indian contracts made with Creeks and Cherokees by that the sole and exclusive jurisdiction of trying and pun-the United States, to fulfil their obligations to Georgia, unishing all persons, of whatsoever nation or tribe, for crimes der the compact of 1802, under the false title of treaties, and offences committed in any part of the State, except have been pleaded in bar of the rights of the State under offences cognizable under the constitution in the courts of that compact, and asserted to be of superior obligation, the United States, of right belonged to, and was exclusive-not to the compact only, but to the State constitution and ly vested in, the courts of justice of the State, organized the State laws. As usual, when error is to be imposed under the constitution and laws thereof. It is not in the upon us for truth, the magic name of Washington has old States only that legislative power is exercised over In- been used. The venerable weight of that great name dians. Maine, our young sister, the birth of yesterday, is of powerful influence. He made treaties with Indians has been, and is constantly permitted to legislate, not for--he consulted the Senate-he ratified treaties solemnly Indians, but for Indian tribes. In 1821, Maine passed an negotiated-he performed the obligations of national faith. act, in 1826 an additional act, "for the regulation of the Such are the general assertions made by the honorable Penobscot and Passamaquoddy tribes of Indians." Senator. Will he show us any treaty, made by WashingThe exclusive control of the Indians is claimed as a ton with Indians living altogether within the limits of a branch of the treaty-making power, and on this rests all State? Can he show us an instance of an interference by the arguments used here, against the right of the States General Washington, in the management of the Indians to legislate for, and make contracts with, the Indians. in any of the old States, either to prevent the formation Now, sir, I assert explicitly, that the power to make a of contracts by State authority, or the punishment of Intreaty with Indians within a State is not delegated to the dians by State tribunals? I will not suffer the cause of the United States; and I assert farther, that the power of State to rest upon the failure to produce these necessary making contracts with Indians is not prohibited to the proofs of the right to use this great name to our prejudice. |
