[THE situation of the Indian tribes within the boundaries of
the state of Georgia was long a subject of controversy between
that state and the United States; it having been contended that
the general government were bound, by former contracts with
the state, to extinguish the Indian title to the lands occupied
by them, and to provide for their removal therefrom, which
lands were then to belong to the state. In May, 1830, a bill,
providing for the removal of the Cherokees from the limits
of Georgia to territories of the United States west of the
Mississippi river, was passed by congress; but such was the
reluctance of these Indians to remove, that, during a period of
five years thereafter, only about one fourth of their number had
emigrated. The sufferings of those who remained, from the wrongs
perpetrated upon them by the whites, excited a deep sympathy
in their behalf among the people of the United States. The
Cherokees frequently sent memorials to congress, asking for
relief; in presenting one of which, Mr. Clay made the following
remarks, in which will be found much valuable information on an
interesting subject. His opinions and sentiments will accord
with those of every philanthropist.]
MR. CLAY held in his hands, and begged leave to present to the
senate, certain resolutions and a memorial, to the senate and
house of representatives of the United States, of a council met at
Running Waters, consisting of a portion of the Cherokee Indians. The
Cherokees have a country――if indeed it can be any longer called their
country――which is comprised within the limits of Georgia, Alabama,
Tennessee, and North Carolina. They have a population which is
variously estimated, but which, according to the best information which
I possess, amounts to about fifteen thousand souls. Of this population
a portion, believed to be much the greater part, amounting, as is
estimated, to between nine and ten thousand souls, reside within the
limits of the state of Georgia. The senate was well aware that for
several years past it had been the policy of the general government
to transfer the Indians to the west of the Mississippi river, and that
a portion of the Cherokees have already availed themselves of this
policy of the government, and emigrated beyond the Mississippi. Of
those who remain, a portion――a respectable but also an inconsiderable
portion――are desirous to emigrate to the west, and a much larger
portion desire to remain on their lands, and lay their bones where
rest those of their ancestors. The papers which I now present emanate
from the minor portion of the Cherokees; from those who are in favor
of emigration. They present a case which appeals strongly to the
sympathies of congress. They say that it is impossible for them to
continue to live under laws which they do not understand, passed by
authority in which they have no share, promulgated in language of which
nothing is known to the greater portion of them, and establishing rules
for their government entirely unadapted to their nature, education, and
habits. They say that destruction is hanging over them if they remain;
that, their right of self-government being destroyed, though they are
sensible of all the privations, hardships, and sufferings of banishment
from their native homes, they prefer exile, with liberty, to residence
in their homes, with slavery. They implore, therefore, the intervention
of the general government, to provide for their removal west of
the Mississippi, and to establish guarantees, never hereafter to be
violated, of the possession of the lands to be acquired by them west
of the Mississippi, and of the perpetual right of self-government. This
was the object of the resolutions and petition which he was about to
offer to the senate.
But I have thought that this occasion was one which called upon me to
express the opinions and sentiments which I hold in relation to this
entire subject, as respects not only the emigrating Indians, but those
also who are desirous to remain at home; in short, to express, in
concise terms, my views of the relations between the Indian tribes and
the people of the United States, the rights of both parties, and the
duties of this government in regard to them.
The rights of the Indians were to be ascertained in the first place,
by the solemn stipulations of numerous treaties made with them by the
United States. It was not his purpose to call the attention of the
senate to all the treaties which had been made with Indian tribes
bearing on this particular topic; but he felt constrained to ask the
attention of the senate to some portions of those treaties which have
been made with the Cherokees, and to the memorable treaty of Greenville,
which had terminated the war that previously thereto for many years
raged between the United States and the north-western Indian tribes. He
found, upon consulting the collection of Indian treaties in his hand,
that within the last half century, fourteen different treaties had been
concluded with the Cherokees, the first of which bore date in the year
1775, and some one or more of which had been concluded under every
administration of the general government, from the beginning of it to
the present time, except the present administration, and that which
immediately preceded it. The treaty of Hopewell, the first in the
series, was concluded in 1775, in the third article of which ‘the said
Indians, for themselves and their respective tribes and towns, do
acknowledge all the Cherokees to be under the protection of the United
States of America, _and of no other sovereign whatsoever_.’ The fifth
article of the same treaty provides, that ‘if any citizen of the United
States, or other person, not being an Indian, shall attempt to settle
on any of the lands westward or southward of the said boundary, which
are hereby allotted to the Indians for their hunting-grounds, or,
having already settled, and will not remove from the same within six
months after the ratification of this treaty, such person shall forfeit
the protection of the United States, and the Indians may punish him or
not, as they please; provided, nevertheless, that this article shall
not extend to the people settled between the fork of French Broad and
Holston rivers,’ and so forth.
The next treaty in the series, which was concluded after the
establishment of the government of the United States, under the
auspices of the father of his country, was in the year 1791, on the
bank of the Holston, and contains the following provision. ‘Article 7.
The United States solemnly guaranty to the Cherokee nation all their
lands not hereby ceded.’ This, Mr. Clay said, was not an ordinary
assurance of protection, and so forth, but _a solemn guarantee_ of
the rights of the Cherokees to the land in question. The next treaty
to which he would call the attention of the senate was concluded in
1794, also under the auspices of general Washington, and declares as
follows. ‘The undersigned, Henry Knox, secretary for the department
of war, being authorized thereto by the president of the United States,
in behalf of the said United States, and the undersigned chiefs and
warriors, in their own names, and in behalf of the whole Cherokee
nation, are desirous of reëstablishing peace and friendship between the
said parties in a permanent manner, do hereby declare, that the said
treaty of Holston is, to all intents and purposes, in full force, and
binding upon the said parties, as well in respect to the boundaries
therein mentioned as in all other respects whatever.’ This treaty,
it is seen, _renews_ the solemn guarantee contained in the preceding
treaty, and declares it to be binding and obligatory upon the parties
in all respects whatever. Again, in another treaty, concluded in 1798,
under the second chief magistrate of the United States, we find the
following stipulations. ‘Article 2. The treaties subsisting between
the present contracting parties are acknowledged to be of full and
operating force; together with the construction and usage under their
respective articles, and so to continue.’ ‘Article 3. The limits and
boundaries of the Cherokee nation, as stipulated and marked by the
existing treaties between the parties, shall be and remain the same,
where not altered by the present treaty.’
There were other provisions, in other treaties, to which, if he did not
intend to take up as little time as possible of the senate, he might
advantageously call their attention. He would, however, pass on to one
of the last treaties with the Cherokees, which was concluded in the
year 1817. That treaty recognised the difference existing between the
two portions of the Cherokees, one of which was desirous to remain at
home and prosecute the good work of civilization, in which they had
made some progress, and the other portion was desirous to go beyond
the Mississippi. In that treaty, the fifth article, after several other
stipulations, concludes as follows. ‘And it is further stipulated,
that the treaties heretofore between the Cherokee nation and the United
States are to continue in full force with both parts of the nation, and
both parts thereof entitled to all the privileges and immunities which
the old nation enjoyed under the aforesaid treaties; the United States
reserving the right of establishing factories, a military post, and
roads, within the boundaries above defined.’ And to this treaty, thus
emphatically renewing the recognition of the rights of the Indians, is
signed the name, as one of the commissioners of the United States who
negotiated it, of the present chief magistrate of the United States.
These were the stipulations in treaties with the Cherokee nation, to
which, Mr. Clay said, he thought proper to call the attention of the
senate. He would now turn to the treaty of Greenville, concluded about
forty years ago, recognising some general principles applicable to
this subject. Mr. Clay then quoted the fifth article of that treaty,
as follows. ‘To prevent any misunderstanding about the Indian lands
relinquished by the United States in the fourth article, it is now
explicitly declared, that the meaning of that relinquishment is this:
the Indian tribes who have a right to those lands are quietly to enjoy
them, hunting, planting, and dwelling thereon so long as they please,
without any molestation from the United States; but when those tribes,
or any of them, shall be disposed to sell their lands, or any part of
them, they are to be sold only to the United States; and until such
sale, the United States will protect all the said Indian tribes in
the quiet enjoyment of their lands against all citizens of the United
States, and against all other white persons who intrude upon the same.
And the said Indian tribes again acknowledge themselves to be under the
protection of the said United States, and no other power whatever.’
Such, sir, are the rights of the Indian tribes. And what are those
rights? They are, that the Indians shall live under their own customs
and laws; that they shall live upon their own lands, hunting, planting,
and dwelling thereon so long as they please, without interruption or
molestation of any sort from the white people of the United States,
acknowledging themselves under the protection of the United States, and
of no other power whatever; that when they no longer wish to keep the
lands, they shall sell them only to the United States, whose government
thus secures to itself the preemptive right of purchase in them. These
rights, so secured by successive treaties and guarantees, have also
been recognised on several occasions, by the highest judicial tribunals.
Mr. Clay here quoted, from an opinion of the supreme court, a passage,
declaring that the Indians are acknowledged to have an unquestionable
and heretofore unquestioned right to their land, until it shall be
extinguished by voluntary cession to this government.
But it is not at home alone that the rights of the Indians within the
limits of the United States have been recognised. Not only has the
executive, the congress of the United States, and the supreme court,
recognised these rights, but in one of the most important epochs
of this government, and on one of the most solemn occasions in our
intercourse with foreign powers, these rights of the Indian tribes
have been acknowledged. You, sir, (addressing the president of the
senate,) will understand me at once to refer to the negotiation between
the government of Great Britain and that of the United States, which
had for its object the termination of the late war between the two
countries. Sir, it must be within your recollection, and that of every
member of the senate, that the hinge upon which that negotiation turned,
the ground upon which it was for a long time apprehended that the
conference between the commissioners would terminate in a rupture
of the negotiation between the two countries, was, the claim brought
forward, on that memorable occasion, by Great Britain, in behalf of the
Indians within the limits of the United States. It will be recollected
that she advanced, as a principle from which she would not recede, as a
_sine qua non_, again and again, during the progress of the negotiation,
that the Indians, as her allies, should be included in the treaty of
peace which the negotiators were about forming; that they should have
a permanent boundary assigned them, and that neither Great Britain nor
the United States should be at liberty to purchase their lands.
Such were the pretensions urged on that occasion, which the
commissioners of the United States had felt it to be their imperative
duty to resist. To establish as the boundary the line of the treaty of
Greenville, as proposed, which would have excluded from the benefit of
American laws and privileges a population of not less than a hundred
thousand of the inhabitants of Ohio, American citizens, entitled to
the protection of the government, was a proposition which the American
negotiators could not for a moment entertain; they would not even refer
it to their government, though assured that it would there meet with
the same unanimous rejection that it did from them. But it became
a matter of some importance that a satisfactory assurance should be
given to Great Britain, that the war, which we were about to bring
to a conclusion with her, should close also with her allies; and what
was that assurance? Mr. Clay said he would not trouble the senate with
tracing the whole account of that negotiation, but he begged leave
to call their attention to one of the passages of it. You will find
on examining the history of the negotiation, that the demand brought
forward by the British government through their minister, on this
occasion, was the subject of several argumentative papers. Towards the
close of this correspondence, reviewing the course pursued towards the
aborigines by the several European powers which had planted colonies in
America, comparing it with that of the United States, and contrasting
the lenity, kindness, and forbearance of the United States, with the
rigor and severity of other powers, the American negotiators expressed
themselves as follows.
‘From the rigor of this system, however, as practiced by Great Britain,
and all the other European powers in America, the humane and liberal
policy of the United States has voluntarily relaxed. A celebrated
writer on the law of nations, to whose authority British jurists have
taken particular satisfaction in appealing, after stating, in the most
explicit manner, the legitimacy of colonial settlements in America,
to the exclusion of all rights of uncivilized Indian tribes, has
taken occasion to praise the first settlers of New England, and of the
founder of Pennsylvania, in having purchased of the Indians the lands
they resolved to cultivate, notwithstanding their being furnished with
a charter from their sovereign. It is this example which the United
States, since they became by their independence the sovereigns of
the territory, have adopted and organized _into a political system_.
Under _that system_ the Indians residing in the United States are
so far independent, that _they live under their own customs, and not
under the laws of the United States_; that their rights upon the lands
where they inhabit or hunt _are secured to them by boundaries_ defined
in amicable treaties between the United States and themselves; and
that whenever those boundaries are varied, it is also by amicable and
voluntary treaties, by which they receive from the United States ample
compensation for every right they have to the lands ceded by them,’ and
so forth.
The correspondence was further continued; and, finally, the
commissioners on the part of Great Britain proposed an article to
which the American commissioners assented, the basis of which is, a
declaration of what is the state of the law between the Indian tribes
and the people of the United States. They then proposed a further
article, which declared that the United States should endeavor to
restore peace to the Indians who had acted on the side of Great Britain,
together with all the rights, possessions, privileges, and immunities
which they possessed prior to the year 1811, that is, antecedently to
the war between England and the United States; in consideration that
Great Britain would terminate the war, so far as respected the Indians
who had been allies of the United States, and restore to them all the
rights, privileges, possessions, and immunities which these also had
enjoyed previously to the same period. Mr. President, I here state my
solemn belief, that if the American commissioners had not declared the
laws between the Indians and the people of this country, and the rights
of the Indians, to be such as they are stated to be in the extracts
I have read to the senate; if they had then stated that any one state
of this union who happened to have Indians residing within its limits,
possessed the right of extending over them the laws of such state, and
of taking their lands, when and how it pleased, that the effect would
have been a prolongation of the war. I again declare my most solemn
belief that Great Britain, who assented with great reluctance to
this mutual stipulation with respect to the Indians, never would have
done it at all, but under a conviction of the correspondence of those
principles of Indian international law, (if I may use such a phrase,)
with those which the United States government had respected ever since
the period of our independence.
Sir, if I am right in this, let me ask whether in adopting the new code
which now prevails, and by which the rights of the Indians have been
trampled on, and the most solemn obligations of treaties have been
disregarded, we are not chargeable with having induced that power to
conclude a peace with us by suggestions utterly unfounded and erroneous?
Most of the treaties between the Cherokee nation of Indians and the
United States have been submitted to the senate for ratification, and
the senate have acted upon them in conformity with their constitutional
power. Besides the action of the senate, as a legislative body, in the
enactment of laws in conformity with their stipulations, regulating
the intercourse of our citizens with that nation, it has acted in
its separate character, and confirmed the treaties themselves by the
constitutional majority of two thirds of its members. Thus have those
treaties been sanctioned by the government of the United States, and by
every branch of that government; by the senate, the executive, and the
supreme court; both at home and abroad. But not only have the rights
of the Cherokees received all these recognitions; they have been, by
implication, recognised by the state of Georgia itself, in the act of
1802, in which she stipulated that the government of the United States,
and not the state of Georgia, should extinguish the Indian title to
land within her limits; and the general government has been, from
time to time, urged by Georgia to comply with its engagement from that
period until the adoption of the late new policy upon this subject.
Having thus, Mr. President, stated, as I hope with clearness, the
RIGHTS of the Indian tribes, as recognised by the most solemn acts
that can be entered into by any government, let me, in the next place,
inquire into the nature of the INJURIES which have been inflicted upon
them; in other words, into the present condition of these Cherokees, to
whom protection had been assured as well by solemn treaties as by the
laws and guarantees of the United States government.
And here let me be permitted to say, that I go into this subject with
feelings which no language at my command will enable me adequately to
express. I assure the senate, and in an especial manner do I assure
the honorable senators from Georgia, that my wish and purpose is any
other than to excite the slightest possible irritation on the part
of any human being. Far from it. I am actuated only by feelings of
grief, feelings of sorrow, and of profound regret, irresistibly called
forth by a contemplation of the miserable condition to which these
unfortunate people have been reduced by acts of legislation proceeding
from one of the states of this confederacy. I again assure the
honorable senators from Georgia, that, if it has become my painful
duty to comment upon some of these acts, I do it not with any desire
to place them, or the state they represent, in an invidious position;
but because Georgia was, I believe, the first in the career, the object
of which seems to be the utter annihilation of every Indian right,
and because she has certainly, in the promotion of it, far outstripped
every other state in the union.
I have not before me the various acts of the state in reference to
the Indians within her bounds; and it is possible I may be under some
mistake in reference to them; and if I am, no one will correct the
error more readily, or with greater pleasure.
If, however, I had all those laws in my hands, I should not now
attempt to read them. Instead of this, it will be sufficient for me to
state the effects which have been produced by them upon the condition
of the Cherokee Indians residing in that state. And here follows a
list of what has been done by her legislature. Her first act was to
abolish the government of these Cherokees. No human community can exist
without a government of some kind; and the Cherokees, imitating our
example, and having learned from us something of the principles of a
free constitution, established for themselves a government somewhat
resembling our own. It is quite immaterial to us what its form was.
They always had had some government among them; and we guarantied to
them the right of living under their own laws and customs, unmolested
by any one; insomuch that our own citizens were outlawed should they
presume to interfere with them. What particular regulations they
adopted, in the management of their humble and limited concerns, is a
matter with which we have no concern. However; the very first act of
the Georgia legislature was, to abolish all government of every sort
among these people, and to extend the laws and government of the state
of Georgia over them. The next step was to divide their territory into
counties; the next, to survey the Cherokee lands; and the last, to
distribute this land among the citizens of Georgia by lottery, giving
to every head of a family one ticket, and the prize in land that
should be drawn against it. To be sure there were many reservations for
the heads of Indian families; and of how much did gentlemen suppose?
of _one hundred and sixty acres only_, and this to include their
improvements. But even to this limited possession the poor Indian was
to have no fee simple title; he was to hold as a mere occupant, at
the will of the state of Georgia, for just as long or as short a time
as she might think proper. The laws at the same time gave him no one
political right, whatever. He could not become a member of the state
legislature, nor could he hold any office under state authority, nor
could he vote as an elector. He possessed not one single right of a
freeman; no; not even the poor privilege of testifying to his wrongs in
the character of a witness in the courts of Georgia, or in any matter
of controversy, whatsoever.
These, Mr. President, are the acts of the legislature of the state of
Georgia, in relation to the Indians. They were not all passed at one
session; they were enacted, time after time, as the state advanced
further and further in her steps to the acquisition of the Indian
country, and the destruction and annihilation of all Indian rights;
until, by a recent act of the same body, the courts of the state itself
are occluded against the Indian sufferer, and he is actually denied an
appeal even to foreign tribunals, in the erection and in the laws of
which he had no voice, there to complain of his wrongs. If he enters
the hall of Georgia’s justice, it is upon a surrender at the threshold
of all his rights. The history of this last law, to which I have
alluded, is this; when the previous law of the state dividing the
Indian lands by lottery was passed, some Indians made an appeal to one
of the judges of the state, and applied for an injunction against the
proceeding; and such was the undeniable justice of their plea, that the
judge found himself unable to refuse it, and he granted the injunction
sought. It was that injunction which led to the passage of this act;
to some of the provisions of which I now invite the attention of the
senate. And first to the _title_ of the act; ‘a bill to amend an act
entitled an act more effectually to provide for the government and
protection of the Cherokee Indians residing within the limits of
Georgia, and to prescribe the bounds of their occupant claims; and also
to authorize grants to issue for lots drawn in the late land and gold
lotteries’――ah, sir, it was the pursuit of _gold_ which led the Spanish
invader to desolate the fair fields of Mexico and Peru――‘and to provide
for the appointment of an agent to carry certain parts thereof into
execution; and to fix the salary of such agent, and to punish those
persons who may deter Indians from enrolling for emigration, passed the
twentieth of December, 1833.’ Well, sir, this bill goes on to provide,
‘that it shall be the duty of the agent or agents appointed by his
excellency the governor, under the authority of this or the act of
which it is amendatory, to report to him the number, district, and
section of all lots of land subject to be granted by the provisions
of said act, which he may be required to do by the drawer, or his
agent, or the person claiming the same; and it shall be the duty of
his excellency the governor, upon the application of the drawer of any
of the aforesaid lots, his or her special agents, or the person to whom
the drawer may have _bonâ fide_ conveyed the same, his agent or assigns,
to issue a grant therefor; and it shall be the duty of the said agent
or agents, upon the production of the grant so issued as aforesaid
by the grantor, his or her agent, or the person, or his or her agent
to whom said land so granted as aforesaid may have been _bonâ fide_
conveyed, to deliver possession of said granted lot to the said grantee,
or person entitled to the possession of the same under the provisions
of this act, or the act of which this is amendatory, and his excellency
the governor is hereby authorized, upon satisfactory evidence that the
said agent is impeded or resisted in delivering such possession, by
a force which he cannot overcome, to order out a sufficient force to
carry the power of said agent or agents fully into effect, and to pay
the expenses of the same out of the contingent fund; _provided_ nothing
in this act shall be so construed as to require the interference of
the said agent between two or more individuals claiming possession,
by virtue of titles derived from a grant from the state to any lot.’
Thus, after the state of Georgia had distributed the lands of the
Indians by lottery, and the drawers of prizes were authorized to
receive grants of the land drawn, and with these grants in their hand
were authorized to demand of the agent of the state, appointed for the
purpose, to be put in possession of the soil thus obtained; and if any
resistance to their entry should be made, and who was to make it but a
poor Indian? the governor is empowered to turn out the military force
of the state, and enable the agent to take possession by force, without
trial, without judgment, and without investigation.
But, should there be two claimants of the prize, should two of the
ticket-holders dispute their claim to the same lot, then no military
force was to be used. It was only when the resistance was by an
Indian――it was only when Indian rights should come into collision with
the alleged rights of the state of Georgia――that the strong hand of
military power was instantly to interpose.
The next section of the act is in these words: ‘and be it further
enacted by the authority aforesaid, that if any person dispossessed
of a lot of land under this act, or the act of which it is amendatory,
shall go before a justice of the peace or of the inferior court, and
make affidavit that he or she was not liable to be dispossessed under
or by any of the provisions of this or the aforesaid act, and file said
affidavit in the clerk’s office of the superior court of the county in
which said land shall lie, such person upon giving bond and security
in the clerk’s office for the costs to accrue on the trial, shall be
permitted within ten days from such dispossessing to enter an appeal to
said superior court and at said court, the judge shall cause an issue
to be made up between the appellant and the person to whom possession
of said land was delivered by either of said agents, which said issue
shall be in the following form.’
[Mr. Cuthbert, of Georgia, here interposed; and having obtained
Mr. Clay’s consent to explain, stated that he had unfortunately
not been in the senate when the honorable senator commenced his
speech; but had learned that it was in support of a memorial
from certain Cherokee Indians in the state of Georgia, who
desired to emigrate. He must be permitted to say, that the
current of the honorable senator’s remarks did not suit
remarkably well the subject of such a memorial. A memorial of
a different kind had been presented, and which the committee
on Indian affairs had before it, to which the senator’s remarks
would better apply. The present discussion was wholly unexpected,
and it seemed to him not in consistency with the object of the
memorial he had presented.]
Mr. Clay replied, that he was truly sorry the honorable gentleman
had been absent when he commenced speaking. He had delayed presenting
the memorial, because he observed that neither of the senators from
Georgia was in his seat, until the hour when they might be expected to
be present, and when one of them, (Mr. King,) had actually taken his
seat. If the honorable senator had been present he would have heard
Mr. Clay say that he thought the presentation of the memorial a fit
occasion to express his sentiments, not only touching the rights of
these individual petitioners, but on the rights of all the Indian
tribes, and their relations to this government. And if he would have
but a little patience he would find that it was Mr. Clay’s intention
to present propositions which went to embrace both resolutions.
Mr. Clay now resumed the course of his speech. And here, Mr. President,
let me pause, and invite the attention of the senate to the provision
in the act of Georgia which I was reading, (the substance of which
Mr. Clay here repeated,) that is, that he may have the privilege of an
appeal to a tribunal of justice by forms and by a bond with the nature
and force of which he is unacquainted; and that then he may have――what
beside? I invoke the attention of the senate to this part of the law.
What, I ask, does it secure to the Indian? His rights? the rights
recognised by treaties? the rights guarantied to him by the most solemn
acts which human governments can perform? No. It allows him to come
into the courts of the state, and there to enjoy the benefit of the
summary proceeding called in the act ‘an appeal,’ but which can never
be continued beyond a second term; and when he comes there, what then?
He shall be permitted to come into court and enter an appeal, which
shall be in the following form.
“A. B., who was dispossessed of a lot of land by an agent of
the state of Georgia, comes into court, and, admitting the right
of the state of Georgia to pass the law under which agent acted,
avers that he was not liable to be dispossessed of said land,
by or under any one of the provisions of the act of the general
assembly of Georgia, passed the twentieth of December, 1833,
‘more effectually to provide for the protection of the Cherokee
Indians residing within the limits of Georgia, and to prescribe
the bounds of their occupant claims, and also to authorize
grants to issue for lots drawn in the land and gold lotteries in
certain cases, and to provide for the appointment of an agent to
carry certain parts thereof into execution, and fix the salary
of such agent, and to punish those persons who may deter Indians
from enrolling for emigration,’ or the act amendatory thereof,
passed at the session of the legislature of 1834: ‘in which
issue the person to whom possession of said land was delivered
shall join; and which issue shall constitute the entire
pleadings between the parties; nor shall the court allow any
matter other than is contained in said issue to be placed upon
the record or files of said court; and said cause shall be tried
at the first term of the court, unless good cause shall be shown
for a continuance, and the same party shall not be permitted
to continue said cause more than once, except for unavoidable
providential cause; nor shall said court at the instance of
either party pass any order or grant any injunction to stay
said cause, nor permit to be engrafted on said cause any other
proceedings, whatever.’”
At the same time, we find, by another enactment, the judges of the
courts of Georgia are restrained from granting injunctions, so that the
only form in which the Indian can come before them, is in the form of
an appeal; and in this, the very first step is an absolute renunciation
of the rights he holds by treaty, and the unqualified admission of
the rights of his antagonist, as conferred by the laws of Georgia;
and the court is expressly prohibited from putting any thing else upon
the record. Why? do we not all know the reason? If the poor Indian was
allowed to put in a plea stating his rights, and the court should then
decide against him, the cause would go upon an appeal to the supreme
court; the decision could be reëxamined, could be annulled, and the
authority of treaties vindicated. But, to prevent this, to make it
impossible, he is compelled, on entering the court, to renounce his
Indian rights, and the court is forbidden to put any thing on record
which can bring up a decision upon them.
Mr. President, I have already stated that, in the observations I
have made, I am actuated by no other feelings than such as ought to be
in the breast of every honest man, the feelings of common justice. I
would say nothing, I would whisper nothing, I would insinuate nothing,
I would think nothing, which can, in the remotest degree, cause
irritation in the mind of any one, of any senator here, of any state in
this union; I have too much respect for every member of the confederacy.
I feel nothing but grief for the wretched condition of these most
unfortunate people, and every emotion of my bosom dissuades me from
the use of epithets that might raise emotions which should draw the
attention of the senate from the justice of their claims. I forbear to
apply to this law any epithet of any kind. Sir, no epithet is needed.
The features of the law itself; its warrant for the interposition of
military power, when no trial and no judgment has been allowed; its
denial of any appeal, unless the unhappy Indian shall first renounce
his own rights, and admit the rights of his opponent; features such
as these are enough to show what the true character of the act is,
and supersede the necessity of all epithets, were I even capable of
applying any.
The senate will thus perceive that the whole power of the state of
Georgia, military as well as civil, has been made to bear upon these
Indians, without their having any voice in forming, judging upon, or
executing the laws under which he is placed, and without even the poor
privilege of establishing the injury he may have suffered, by Indian
evidence; nay, worse still, not even by the evidence of a white man!
Because the renunciation of his rights precludes all evidence, white
or black, civilized or savage. There then he lies, with his property,
his rights, and every privilege which makes human existence desirable,
at the mere mercy of the state of Georgia; a state, in whose government
or laws he has no voice. Sir, it is impossible for the most active
imagination to conceive a condition of human society more perfectly
wretched. Shall I be told that the condition of the African slave is
worse? No, sir; no, sir. It is not worse. The interest of the master
makes it at once his duty and his inclination, to provide for the
comfort and the health of his slave; for without these, he would
be unprofitable. Both pride and interest render the master prompt
in vindicating the rights of his slave, and protecting him from the
oppression of others; and the laws secure to him the amplest means to
do so. But who, what human being, stands in the relation of master or
any other relation, which makes him interested in the preservation and
protection of the poor Indian thus degraded and miserable? Thrust out
from human society, without the sympathies of any, and placed without
the pale of common justice, who is there to protect him, or to defend
his rights?
Such, Mr. President, is the present condition of these Cherokee
memorialists, whose case it is my duty to submit to the consideration
of the senate. There remains but one more inquiry before I conclude.
Is there any REMEDY within the scope of the powers of the federal
government, as given by the constitution? If we are without power,
if we have no constitutional authority, then we are also without
responsibility. Our regrets may be excited, our sympathies may be moved,
our humanity may be shocked, our hearts may be grieved, but if our
hands are tied, we can only unite with all the good, the christian,
the benevolent portion of the human family, in deploring what we cannot
prevent.
But, sir, we are not thus powerless. I stated to the senate when
I began, that there are two classes of the Cherokees; one of these
classes desires to emigrate, and it was their petition I presented
this morning; and with respect to these, our powers are ample to afford
them the most liberal and effectual relief. They wish to go beyond
the Mississippi, and to be guarantied in the possession of the country
which may be there assigned to them. As the congress of the United
States have full powers over the territories, we may give them all the
guarantee which congress can express, for the undisturbed possession of
their lands. With respect to their case, there can be no question as to
our powers.
And, then, as to those who desire to remain on this side the river,
I ask, again, are we powerless? Can we afford them no redress? Must
we sit still, and see the injury they suffer, and extend no hand to
relieve them? It were strange, indeed, were such the case. Why have we
guarantied to them the enjoyment of their own laws? Why have we pledged
to them protection? Why have we assigned them limits of territory? Why
have we declared that they shall enjoy their homes in peace, without
molestation from any? If the United States government has contracted
these serious obligations, it ought, before the Indians were reduced by
our assurances to rely upon our engagement, to have explained to them
its want of authority to make the contract. Before we pretend to Great
Britain, to Europe, to the civilized world, that such were the rights
we would secure to the Indians, we ought to have examined the extent
and the grounds of our own rights to do so. But is such, indeed, our
situation? No, sir. Georgia has shut her courts against these Indians.
What is the remedy? _To open ours._ Have we not the right? What says
the constitution? ‘The judicial power shall extend to all cases in law
and equity, arising under this constitution, the laws of the United
States, and treaties made, or which shall be made, under their
authority.’
But here was a case of conflict between the rights of the proprietors
and the local laws; and here was the very case which the constitution
contemplated, when it declared that the power of the federal judiciary
should extend to all cases under the authority of the United States.
Therefore, it was fully within the competence of congress, under the
provisions of the constitution, to provide the manner in which the
Cherokees might have their rights decided, because a grant of the means
was included in the grant of jurisdiction. It was competent, then,
for congress to decide, whether the Cherokee had a right to come into
a court of justice and to make an appeal to the highest authority,
to sustain the solemn treaties under which their rights had been
guarantied, and in the sacred character of which they had reposed
their confidence. And if congress possessed the power to extend relief
to the Indians, were they not bound, by the most sacred of human
considerations, the obligations of treaties, the protection assured
them, by every christian tie, every benevolent feeling, every humane
impulse of the human heart, to extend it? If they were to fail to do
this, and there was, as reason and revelation declared there was, a
tribunal of eternal justice, to which all human power was amenable, how
could they, if they refused to perform their duties to this injured and
oppressed, though civilized race, expect to escape the visitations of
that divine vengeance which none would be permitted to avoid, who had
committed wrong, or done injustice to others?
At this moment, when the United States were urging on the government of
France the fulfilment of the obligations of the treaty concluded with
that country, to the execution of which, it was contended that France
had plighted her sacred faith, what strength, what an irresistible
force would be given to our plea, if we could say to France, that,
in all instances, we had completely fulfilled all our engagements,
and that we had adhered faithfully to every obligation which we had
contracted, no matter whether it was entered into with a powerful or a
weak people; if we could say to her, that we had complied with all our
engagements to others, that we now came before her, always acting right
as we had done, to induce her also to fulfil her obligations to us. How
should we stand in the eyes of France, and of the civilized world, if
we, in spite of the most solemn treaties, which had existed for half
a century, and had been recognised in every form, and by every branch
of the government; how would they be justified, if they, suffered these
treaties to be trampled under foot, and the rights which they were
given to secure, trodden into the dust? How would Great Britain, after
the solemn understanding entered into with her at Ghent, feel, after
such a breach of faith? And how could he, as a commissioner on the
negotiation of that treaty, hold up his head before Great Britain,
after having been thus made an instrument of fraud and deception, as he
assuredly would have been, if the rights of the Indians are to be thus
violated, and the treaties by which they were secured, violated? How
could he hold up his head, after such a violation of rights, and say
that he was proud of his country, of which they all must wish to be
proud?
For himself, he rejoiced that he had been spared, and allowed a
suitable opportunity to present his views and opinions, on this great
national subject, so interesting to the national character of the
country for justice and equity. He rejoiced that the voice which,
without charge of presumption or arrogance, he might say, was ever
raised in defence of the oppressed of the human species, had been heard
in defence of this most oppressed of all. To him, in that awful hour
of death, to which all must come, and which, with respect to himself,
could not be very far distant, it would be a source of the highest
consolation, that an opportunity had been found by him, on the floor
of the senate, in the discharge of his official duty, to pronounce his
views on a course of policy marked by such wrongs as were calculated
to arrest the attention of every one, and that he had raised his humble
voice, and pronounced his solemn protest, against such wrongs.
He would no longer detain the senate, but would submit the following
propositions.
_Resolved_, that the committee on the judiciary be directed to
inquire into the expediency of making further provision, by law,
to enable Indian nations or tribes, to whose use and occupancy
lands are secured by treaties concluded between them and the
United States, to defend and maintain their rights to such
lands, in the courts of the United States, in conformity with
the constitution of the United States.
_Resolved_, that the committee on Indian affairs be directed to
inquire into the expediency of making further provisions, by law,
for setting apart a district of country west of the Mississippi
river, for such of the Cherokee nation as may be disposed to
emigrate and to occupy the same, and for securing, in perpetuity,
the peaceful and undisturbed enjoyment thereof, to the emigrants
and their descendants.
Mr. Clay moved that the memorial and resolutions adopted by the council
of the Running Waters, be referred to the committee on Indian affairs,
and printed.
As to his resolutions, he knew, that in the regular order of business,
they could not be taken up until to-morrow, but, if it met with the
approbation of the senate, he would be as well disposed to act on them
to-day as to-morrow.
In reply to Mr. Cuthbert, of Georgia, and Mr. White, of Tennessee,
Mr. Clay said he could assure the honorable senator from Georgia, that
nothing was further from his purpose, than to make any display on this
occasion. That he always left to others, and by the judgment of the
senate he was willing to abide, whether the honorable senator himself
had not been guilty of that which he imputed to others. For, after
addressing the senate, himself, some time, he had said that he did not
intend arguing the question, that Georgia would not appear before the
senate or any other tribunal. Now, Georgia might be content to do that,
but could congress, could honorable senators, reconcile it with their
duty, with their responsibility, to coldly contemplate the violation
of numerous treaties, to witness the destruction of a people under the
protection of the United States, and to let that injustice which had
been inflicted on these unfortunate Cherokees, be perpetuated without
the slightest notice on their part?
The gentleman from Tennessee, (Mr. White,) had remarked, that they
were all unconstitutional treaties; that they had no binding force as
treaties; that general Washington was mistaken; that every succeeding
administration was mistaken; that general Jackson himself was mistaken,
in 1817, in regard to these treaties. Now, if they gave the argument
of the honorable senator from Tennessee its full force, what was the
consequence? What did he, (Mr. Clay,) offer? He said, merely to open
the question to the court. If they had no validity, if the question
which was sent to the judiciary did not rest upon treaties, they could
vindicate no rights under them. Why had Georgia, if she believed there
were no treaties, made provisions in her late act to which he had
referred? Why shut out the rights of the Indians under the treaty?
Why, if she was convinced of the unconstitutionality of the treaties,
did she not allow them to be submitted to the federal judiciary, which
was bound to declare that they were not obligatory and binding, if
unconstitutional? Why has she studiously precluded the possibility of a
review, in the supreme court, of the decisions of the local tribunals?
But the gentleman had told the senate, that the treaty of ’91 was the
first that guarantied to the Cherokees their lands, and that president
Washington doubted whether it was necessary to submit it to the
senate. It might be true, at the commencement of the government, when
every thing was new and unfixed, that there were doubts; but general
Washington decided that it was a treaty, and laid it, with his doubts,
before the senate, who decided them, and the treaty was ratified by
and with the consent of the senate. And from that day those doubts have
remained dispelled. He was indebted to the honorable senator for the
historical fact which he, (Mr. Clay,) had not before pressed, that this
very guaranty which secured to the Indians the undisturbed possession
of their lands in the treaty of ’91, was inserted by the express
direction of the father of his country. And the senate was called
upon now, not merely to violate the solemn obligations which the whole
nation had contracted, but to violate the provision which had been
inserted at the instance of the venerated father of his country!
The honorable senator had told this body, that the treaty of ’91 was
the first in which there was any guarantee. If the gentleman meant
to say it was the first in which there was any _express_ guarantee,
he, (Mr. Clay,) would admit it. But, in the treaty of ’85, if it was
not expressed, was it not implied? What was that clause, marking the
boundaries of their territory? That, in the same treaty, which places
the Indians under the protection of the United States, and excludes
them from the authority of any other sovereign? And that, which outlaws
citizens of the United States who intrude in their territory? What was
the meaning of those clauses, if they did not, by implication at least,
guaranty their rights, their property, and the peace of their country?
But, the gentleman says, that in inserting the guaranty of ’91, there
was a mistake; it was supposed that it was without the limits of
North Carolina, and other states; a mistake which ran through all the
treaties from that time down to 1817, which renewed and enforced the
preëxisting treaties. So that general Jackson himself had been acting
under a mistake when he signed the treaty of 1817. Is it possible, that,
if a mistake were committed as early as 1791, it would not have been
corrected in some of the various treaties negotiated as late as 1817?
The senator had said also, that the states had a right to extend
their laws over all the territories and people within their limits,
as defined by the treaty of ’83. Why, that was the very question under
consideration, the identical question to be submitted to the judiciary.
He, (Mr. Clay,) contended that the states had no right to extend their
laws over that portion of the territory assigned to the Indians, or
over the Indians dwelling upon it. And that is the exact question which
his resolution proposes to be submitted to the determination of the
judiciary, and which the late act of Georgia carefully shuns.
But the senator from Tennessee had asked, ‘what will the poor Indian,
with his six hundred and forty acres of land, do, contending for
his rights in a court of justice?’ Why, he, (Mr. Clay,) would admit
that his condition would be miserable enough; but it was all they
could do for him, and they were bound to do all they could, under the
constitutional power they possessed, to maintain his rights. But, he
would ask, what was to prevent these Indians, in their corporate, or
collective character, from bringing their grievances before the courts?
Nothing. And, that they were competent to this, we had only to look
at the state papers which had emanated from them, and which did them
immortal credit, to be convinced. The senator from Tennessee asked,
‘what the states would do? Would they array the federal power against
the power of the state governments, and thus produce that condition of
things which must result in the Indians’ being stricken from the face
of the earth?’ Did not the honorable senator remember the period when
a state of this union was actually arrayed and marshalled to defend
its interpretation of the constitution? He was hearty in the support
of the force bill; he did not stop to look at the possible consequences
of a civil war. He, (Mr. Clay,) gave it his reluctant and most painful
support. He would gladly have turned the bitter cup from his lips,
but he felt it to be his duty to sustain the authority of the general
government; and, after giving to the subject the most solemn and
serious consideration, he felt himself constrained to sustain that
measure. And he went along with the senator from Tennessee upon the
principle, now denied by him, that the federal authority must maintain
its dignity. He went upon the ground, now abandoned by the senator
from Tennessee, that no state ought to array itself against the
constitutional powers of this government.
How was the fact up to the period of 1829? The gentleman from
Tennessee tells us the true policy of this government is to send these
poor creatures beyond the Mississippi, and that there is no impediment
in the obligations of subsisting treaties. Never, until the new light
burst upon us, that hundreds of Indian treaties, made during a period
of half a century, under almost every administration of the government,
concluded and ratified with all the solemn forms of the constitution,
and containing the most explicit guarantees and obligations of
protection to the Indians, and of security to their possessions,
were mere nullities, was it supposed competent to effect a compulsory
removal of the Indians beyond the Mississippi. It is true, that the
policy of removing them has been long entertained; was contemplated
by Mr. Jefferson; but it was a free, voluntary, and unconstrained
emigration. No one, until of late, ever dreamed of a forcible removal,
against their consent, accomplished either by the direct application
of military power, or by cruel and intolerable local legislation. He
wished that they would voluntarily remove. He believed that absorption
or extinction was the only alternative of their remaining in the bosom
of the whites. But they were a part of the human race, as capable as we
are of pleasure and pain, and invested with as indisputable a right as
we have, to judge of and pursue their own happiness.
It is said, that annihilation is the destiny of the Indian race.
Perhaps it is, judging from the past. But shall we therefore hasten
it? Death is the irreversible decree pronounced against the human race.
Shall we accelerate its approach, because it is inevitable? No, sir.
Let us treat with the utmost kindness, and the most perfect justice,
the aborigines whom Providence has committed to our guardianship.
Let us confer upon them, if we can, the inestimable blessings of
christianity and civilization, and then, if they must sink beneath the
progressive wave of civilized population, we are free from all reproach,
and stand acquitted in the sight of God and man.
The senator from Tennessee has left the senate under the impression,
no doubt unintentionally, that three other states had advanced as
far as Georgia in the exercise of a jurisdiction over the Indians and
their property. But if he, (Mr. Clay,) were rightly informed, this was
far from correct. North Carolina had exercised no such jurisdiction.
She had not touched a hair upon the head of any Indian. Tennessee
had extended her laws to the Indian country, for the sole purpose
of protecting the Indians, and punishing the white intruders. Her
upright judges and tribunals concurred, unanimously, if he were rightly
informed, in supporting the Indian rights. No state, he believed, but
Georgia, had seized upon the Indian lands, and distributed them among
the whites. From the commencement of our independence down to this time,
there was not another instance of such seizure, and appropriation, by
any other member of the confederacy.
Mr. Clay assured the senator from Georgia, that he had not sought
for the position in which he was placed. It was sought of him. He was
applied to by the unfortunate Cherokees, to present their case to the
senate. And he should have been false and faithless to his own heart,
and unworthy of human nature, if he had declined to be their organ,
however inadequate he feared he had proved himself to be.
On the whole, then, said Mr. Clay, the resolutions proposed an inquiry
into the suitableness of making further provision for the Cherokees who
choose to emigrate beyond the Mississippi. And in regard to those of
them who will not go, but who prefer to cling to the graves of their
forefathers, and to the spot which gave them birth, in spite of any
destiny impending over them, the resolution proposes, that, since
Georgia has shut her courts against them, we should inquire whether we
should not open those of the federal government to them, and ascertain
whether, according to the constitution, treaties, and laws, we are
capable of fulfilling the obligations which we have solemnly contracted.
The memorial of the Cherokees was then referred to the committee
on Indian affairs, and Mr. Clay’s resolutions laid on the table
for one day.