CHAPTER LI.

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.

Thirty Years' View (Vol. 1 of 2) or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 · 第 51 / 166 章