INDIAN SOVEREIGNTIES WITHIN THE STATES
A political movement on the part of some of the southern tribes
of Indians, brought up a new question between the States and
those Indians, which called for the interposition of the federal
government. Though still called Indians, their primitive and equal
government had lost its form, and had become an oligarchy, governed
chiefly by a few white men, called half-breeds, because there was a
tincture of Indian blood in their veins. These, in some instances,
set up governments within the States, and claimed sovereignty
and dominion within their limits. The States resisted this claim
and extended their laws and jurisdiction over them. The federal
government was appealed to; and at the commencement of the session
of 1829-'30, in his first annual message, President Jackson brought
the subject before the two Houses of Congress, thus:
"The condition and ulterior destiny of the Indian tribes within
the limits of some of our States, have become objects of
much interest and importance. It has long been the policy of
government to introduce among them the arts of civilization,
in the hope of gradually reclaiming them from a wandering
life. This policy has, however, been coupled with another,
wholly incompatible with its success. Professing a desire to
civilize and settle them, we have, at the same time, lost no
opportunity to purchase their lands and thrust them further
into the wilderness. By this means they have not only been
kept in a wandering state, but been led to look upon us as
unjust, and indifferent to their fate. Thus, though lavish in
its expenditures upon the subject, government has constantly
defeated its own policy, and the Indians, in general, receding
further and further to the West, have retained their savage
habits. A portion, however, of the southern tribes, having
mingled much with the whites, and made some progress in the
arts of civilized life, have lately attempted to erect an
independent government within the limits of Georgia and Alabama.
These States, claiming to be the only sovereigns within their
territories, extended their laws over the Indians; which induced
the latter to call upon the United States for protection.
"Under these circumstances, the question presented was, whether
the general government had a right to sustain those people in
their pretensions? The constitution declares, that "no new
States shall be formed or erected within the jurisdiction of any
other State," without the consent of its legislature. If the
general government is not permitted to tolerate the erection of
a confederate State within the territory of one of the members
of this Union, against her consent, much less could it allow a
foreign and independent government to establish itself there.
Georgia became a member of the confederacy which eventuated
in our federal union, as a sovereign State, always asserting
her claim to certain limits; which, having been originally
defined in her colonial charter, and subsequently recognized
in the treaty of peace, she has ever since continued to enjoy,
except as they have been circumscribed by her own voluntary
transfer of a portion of her territory to the United States,
in the articles of cession of 1802. Alabama was admitted into
the Union on the same footing with the original States, with
boundaries which were prescribed by Congress. There is no
constitutional, conventional, or legal provision, which allows
them less power over the Indians within their borders, than
is possessed by Maine or New-York. Would the people of Maine
permit the Penobscot tribe to erect an independent government
within their State? and, unless they did, would it not be the
duty of the general government to support them in resisting such
a measure? Would the people of New-York permit each remnant
of the Six Nations within her borders, to declare itself an
independent people, under the protection of the United States?
Could the Indians establish a separate republic on each of their
reservations in Ohio? And if they were so disposed, would it be
the duty of this government to protect them in the attempt? If
the principle involved in the obvious answer to these questions
be abandoned, it will follow that the objects of this government
are reversed; and that it has become a part of its duty to aid
in destroying the States which it was established to protect.
"Actuated by this view of the subject, I informed the Indians
inhabiting parts of Georgia and Alabama, that their attempt to
establish an independent government would not be countenanced by
the Executive of the United States; and advised them to emigrate
beyond the Mississippi, or submit to the laws of those States."
Having thus refused to sustain these southern tribes in their
attempt to set up independent governments within the States of
Alabama and Georgia, and foreseeing an unequal and disagreeable
contest between the Indians and the States, the President
recommended the passage of an act to enable him to provide for
their removal to the west of the Mississippi. It was an old policy,
but party spirit now took hold of it, and strenuously resisted the
passage of the act. It was one of the closest, and most earnestly
contested questions of the session; and finally carried by an
inconsiderable majority. The sum of $500,000 was appropriated to
defray the expenses of treating with them for an exchange, or sale
of territory; and under this act, and with the ample means which
it placed at the disposal of the President, the removals were
eventually effected; but with great difficulty, chiefly on account
of a foreign, or outside influence from politicians and intrusive
philanthropists. Georgia was the State where this question took
its most serious form. The legislature of the State laid off the
Cherokee country into counties, and prepared to exercise her laws
within them. The Indians, besides resisting through their political
friends in Congress, took counsel and legal advice, with a view to
get the question into the Supreme Court of the United States. Mr.
Wirt, the late Attorney General of the United States, was retained
in their cause, and addressed a communication to the Governor of
the State, apprising him of the fact; and proposing that an "agreed
case" should be made up for the decision of the court. Gov. Gilmer
declined this proposal, and in his answer gave as the reason why
the State had taken the decided step of extending her jurisdiction,
that the Cherokee tribe had become merged in its management in the
"half breeds," or descendants of white men, who possessed wealth and
intelligence, and acting under political and fanatical instigations
from without, were disposed to perpetuate their residence within the
State,--(the part of them still remaining and refusing to join their
half tribe beyond the Mississippi). The governor said: "So long as
the Cherokees retained their primitive habits, no disposition was
shown by the States under the protection of whose government they
resided, to make them subject to their laws. Such policy would have
been cruel; because it would have interfered with their habits of
life, the enjoyments peculiar to Indian people, and the kind of
government which accorded with those habits and enjoyments. It was
the power of the whites, and of their children among the Cherokees,
that destroyed the ancient laws, customs and authority of the
tribe, and subjected the nation to the rule of that most oppressive
of governments--an oligarchy. There is nothing surprising in this
result. From the character of the people, and the causes operating
upon them, it could not have been otherwise. It was this state of
things that rendered it obligatory upon Georgia to vindicate the
rights of her sovereignty by abolishing all Cherokee government
within its limits. Whether of the intelligent, or ignorant class,
the State of Georgia has passed no laws violative of the liberty,
personal security, or private property of any Indian. It has been
the object of humanity, and wisdom, to separate the two classes (the
ignorant, and the informed Indians) among them, giving the rights of
citizenship to those who are capable of performing its duties and
properly estimating its privileges; and increasing the enjoyment and
the probability of future improvement to the ignorant and idle, by
removing them to a situation where the inducements to action will be
more in accordance with the character of the Cherokee people."
With respect to the foreign interference with this question, by
politicians of other States and pseudo philanthropists, the only
effect of which was to bring upon subaltern agents the punishment
which the laws inflicted upon its violators, the governor said: "It
is well known that the extent of the jurisdiction of Georgia, and
the policy of removing the Cherokees and other Indians to the west
of the Mississippi, have become party questions. It is believed that
the Cherokees in Georgia, had determined to unite with that portion
of the tribe who had removed to the west of the Mississippi, if
the policy of the President was sustained by Congress. To prevent
this result, as soon as it became highly probable that the Indian
bill would pass, the Cherokees were persuaded that the right of
self-government could be secured to them by the power of the Supreme
Court of the United States, in defiance of the legislation of the
general and State governments. It was not known, however, until the
receipt of your letter, that the spirit of resistance to the laws of
the State, and views of the United States, which has of late been
evident among the Indians, had in any manner been occasioned by your
advice." Mr. Wirt had been professionally employed by the Cherokees
to bring their case before the Supreme Court; but as he classed
politically with the party, which took sides with the Indians
against Georgia, the governor was the less ceremonious, or reserved
in his reply to him.
Judge Clayton, in whose circuit the Indian counties fell, at his
first charge to the grand jury assured the Indians of protection,
warned the intermeddlers of the mischief they were doing, and of
the inutility of applying to the Supreme Court. He said: "My other
purpose is to apprise the Indians that they are not to be oppressed,
as has been sagely foretold: that the same justice which will be
meted to the citizen shall be meted to them." With respect to
intermeddlers he said: "Meetings have been held in all directions,
to express opinions on the conduct of Georgia, and Georgia
alone--when her adjoining sister States had lately done precisely
the same thing; and which she and they had done, in the rightful
exercise of their State sovereignty." The judge even showed that
one of these intrusive philanthropists had endeavored to interest
European sympathy, in behalf of the Cherokees; and quoted from the
address of the reverend Mr. Milner, of New-York, to the Foreign
Missionary Society in London: "That if the cause of the negroes
in the West Indias was interesting to that auditory--and deeply
interesting it ought to be--if the population in Ireland, groaning
beneath the degradation of superstition--excited their sympathies,
he trusted the Indians of North America would also be considered
as the objects of their Christian regard. He was grieved, however,
to state that there were those in America, who acted towards them
in a different spirit; and he lamented to say that, at this very
moment, the State of Georgia was seeking to subjugate and destroy
the liberties both of the Creeks and the Cherokees; the former of
whom possessed in Georgia, ten millions of acres of land, and the
latter three millions." In this manner European sympathies were
sought to be brought to bear upon the question of removal of the
Indians--a political and domestic question, long since resolved upon
by wise and humane American statesmen--and for the benefit of the
Indians themselves, as well as of the States in which they were. If
all that the reverend missionary uttered had been true, it would
still have been a very improper invocation of European sympathies in
an American domestic question, and against a settled governmental
policy: but it was not true. The Creeks, with their imputed ten
millions of acres, owned not one acre in the State; and had not in
five years--not since the treaty of cession in 1825: which shows
the recklessness with which the reverend suppliant for foreign
sympathy, spoke of the people and States of his own country. The few
Cherokees who were there, instead of subjugation and destruction of
their liberties, were to be paid a high price for their land, if
they chose to join their tribe beyond the Mississippi; and if not,
they were to be protected like the white inhabitants of the counties
they lived in. "With respect to the Supreme Court, the judge
declared that he should pay no attention to its mandate--holding
no writ of error to lie from the Supreme Court of the United
States to his State Court--but would execute the sentence of the
law, whatever it might be, in defiance of the Supreme Court; and
such was the fact. Instigated by foreign interference, and relying
upon its protection, one George Tassels, of Indian descent,
committed a homicide in resisting the laws of Georgia--was tried
for murder--convicted--condemned--and sentenced to be hanged on a
given day. A writ of error, to bring the case before itself, was
obtained from the Supreme Court of the United States; and it was
proposed by the counsel, Mr. Wirt, to try the whole question of
the right of Georgia, to exercise jurisdiction over the Indians
and Indian country within her limits, by the trial of this writ
of error at Washington; and for that purpose, and to save the
tedious forms of judicial proceedings, he requested the governor
to consent to make up an "agreed case" for the consideration and
decision of that high court. This proposition Governor Gilmer
declined, in firm but civil terms, saying: "Your suggestion that
it would be convenient and satisfactory if yourself, the Indians,
and the governor would make up a law case to be submitted to the
Supreme Court for the determination of the question, whether the
legislature of Georgia has competent authority to pass laws for
the government of the Indians residing within its limits, however
courteous the manner, and conciliatory the phraseology, cannot but
be considered as exceedingly disrespectful to the government of the
State. No one knows better than yourself, that the governor would
grossly violate his duty, and exceed his authority, by complying
with such a suggestion; and that both the letter and the spirit of
the powers conferred by the constitution upon the Supreme Court
forbid its adjudging such a case. It is hoped that the efforts
of the general government to execute its contract with Georgia
(the compact of 1802), to secure the continuance and advance the
happiness of the Indian tribes, and to give quiet to the country,
may be so effectually successful as to prevent the necessity of any
further intercourse upon the subject." And there was no further
intercourse. The day for the execution of Tassels came round: he was
hanged: and the writ of the Supreme Court was no more heard of. The
remaining Cherokees afterwards made their treaty, and removed to
the west of the Mississippi; and that was the end of the political,
and intrusive philanthropical interference in the domestic policy
of Georgia. One Indian hanged, some missionaries imprisoned, the
writ of the Supreme Court disregarded, the Indians removed: and
the political and pseudo-philanthropic intermeddlers left to the
reflection of having done much mischief in assuming to become the
defenders and guardians of a race which the humanity of our laws and
people were treating with parental kindness.