WASHINGTON, _January 13, 1840_.
_To the Senate of the United States_:
I again submit to you the amended treaty of June 11, 1838, with the
New York Indians. It is accompanied by minutes of the proceedings of
a council held with them at Cattaraugus on the 13th and 14th days of
August, 1839, at which were present on the part of the United States the
Secretary of War and on the part of the State of Massachusetts General
H.A.S. Dearborn, its commissioner; by various documentary testimony, and
by a memorial presented in behalf of the several committees on Indian
concerns appointed by the four yearly meetings of Friends of Genesee,
New York, Philadelphia, and Baltimore. In the latter document the
memorialists not only insist upon the irregularity and illegality of the
negotiation, but urge a variety of considerations which appear to them
to be very conclusive against the policy of the removal itself. The
motives by which they have been induced to take so deep an interest
in the subject are frankly set forth, and are doubtless of the most
beneficent character. They have, however, failed to remove my decided
conviction that the proposed removal, if it can be accomplished by
proper means, will be alike beneficial to the Indians, to the State
in which the land is situated, and to the more general interest of
the United States upon the subject of Indian affairs.
The removal of the New York Indians is not only important to the tribes
themselves, but to an interesting portion of western New York, and
especially to the growing city of Buffalo, which is surrounded by lands
occupied by the Senecas. To the Indians themselves it presents the only
prospect of preservation. Surrounded as they are by all the influences
which work their destruction, by temptation they can not resist and
artifices they can not counteract, they are rapidly declining, and,
notwithstanding the philanthropic efforts of the Society of Friends,
it is believed that where they are they must soon become extinct; and
to this portion of our country the extraordinary spectacle is presented
of densely populated and highly improved settlements inhabited by
industrious, moral, and respectable citizens, divided by a wilderness
on one side of which is a city of more than 20,000 souls, whose
advantageous position in every other respect and great commercial
prospects would insure its rapid increase in population and wealth
if not retarded by the circumstance of a naturally fertile district
remaining a barren waste in its immediate vicinity. Neither does it
appear just to those who are entitled to the fee simple of the land,
and who have paid a part of the purchase money, that they should suffer
from the waste which is constantly committed upon their reversionary
rights and the great deterioration of the land consequent upon such
depredations without any corresponding advantage to the Indian
occupants.
The treaty, too, is recommended by the liberality of its provisions.
The cession contained in the first article embraces the right, title,
and interest secured to "the Six Nations of the New York Indians and
St. Regis tribe" in lands at Green Bay by the Menomonee treaty of 8th
February, 1831, the supplement thereto of 17th of same month, and the
conditions upon which they were ratified by the Senate, except a tract
on which a part of the New York Indians now reside. The Menomonee treaty
assigned them 500,000 acres, coupled with the original condition that
they should remove to them within three years after the date of the
treaty, modified by the supplement so as to empower the President to
prescribe the term within which they should remove to the Green Bay
lands, and that if they neglected to do so within the period limited
so much of the land as should be unoccupied by them at the termination
thereof should revert to the United States. To these lands the New
York Indians claimed title, which was resisted, and, for quieting
the controversy, by the treaty of 1831 the United States paid a large
consideration; and it will be seen that by using the power given in the
treaty the Executive might put an end to the Indian claim. Instead of
this harsher measure, for a grant of all their interest in Wisconsin,
which, deducting the land in the actual occupancy of New York Indians,
amounts to about 435,000 acres, the treaty as amended by the Senate
gives 1,824,000 acres of lands in the West and the sum of $400,000 for
their removal and subsistence, for education and agricultural purposes,
the erection of mills and the necessary houses, and the promotion of
the mechanic arts. Besides, there are special money provisions for the
Cayugas, the Onondagas, the Oneidas of New York, the Tuscaroras, and
St. Regis Indians, and an engagement to receive from Ogden and Fellows
for the Senecas $202,000; to invest $100,000 of this sum in safe stocks
and to distribute $102,000 among the owners of improvements in New York
according to an appraisement; to sell for the Tuscaroras 5,000 acres
of land they hold in Niagara County, N.Y., and to invest the proceeds,
exclusive of what may be received for improvements, "the income from
which shall be paid to the nation at their new homes annually, and the
money which shall be received for improvements on said lands shall
be paid to the owners of the improvements when the lands are sold."
These are the substantial parts of the treaty, and are so careful of
Indian advantage that one might suppose they would be satisfactory to
those most anxious for their welfare. The right they cede could be
extinguished by a course that treaty provisions justify and authorize.
So long as they persevere in their determination to remain in New York
it is of no service to them, and for this naked right it is seen what
the United States propose to give them besides the sum of $202,000,
which will be due from the purchasers of their occupant right to the
Senecas, and $9,600 to the Tuscaroras for their title to 1,920 acres
of land in Ontario County, N.Y., exclusive of the 5,000 acres above
mentioned.
But whilst such are my views in respect to the measure itself, and while
I shall feel it to be my duty to labor for its accomplishment by the
proper use of all the means that are or shall be placed at my disposal
by Congress, I am at the same time equally desirous to avoid the use of
any which are inconsistent with those principles of benevolence and
justice which I on a former occasion endeavored to show have in the main
characterized the dealings of the Federal Government with the Indian
tribes from the Administration of President Washington to the present
time. The obstacles to the execution of the treaty grow out of the
following considerations: The amended treaty was returned to me by your
body at the close of its last session, accompanied by a resolution
setting forth that "whenever the President of the United States shall be
satisfied that the assent of the Seneca tribe of Indians has been given
to the amended treaty of June 11, 1838, with the New York Indians,
according to the true intent and meaning of the resolution of the 11th
of June, 1838, the Senate recommend that the President make proclamation
of said treaty and carry the same into effect." The resolution of the
11th of June, 1838, provided that "the said treaty shall have no force
or effect whatever as relates to any of the said tribes, nations, or
bands of New York Indians, nor shall it be understood that the Senate
have assented to any of the contracts connected with it until the same,
with the amendments herein proposed, is submitted and fully explained
by the commissioner of the United States to each of the said tribes or
bands separately assembled in council, and they have given their free
and voluntary consent thereto." The amended treaty was submitted to the
chiefs of the several tribes and its provisions explained to them in
council. A majority of the chiefs of each of the tribes of New York
Indians signed the treaty in council, except the Senecas. Of them only
16 signed in council, 13 signed at the commissioner's office, and 2, who
were confined by indisposition, at home. This was reported to the War
Department in October, 1838, and in January, 1839, a final return of
the proceedings of the commissioner was made, by which it appeared that
41 signatures of chiefs, including 6 out of the 8 sachems of the nation,
had been affixed to the treaty. The number of chiefs of the Seneca
Nation entitled to act for the people is variously estimated from
74 to 80, and by some at a still higher number. Thus it appears that,
estimating the number of chiefs at 80--and it is believed there are at
least that number--there was only a bare majority of them who signed the
treaty, and only 16 gave their assent to it in council. The Secretary of
War was under these circumstances directed to meet the chiefs of the New
York Indians in council, in order to ascertain, if possible, the views
of the several tribes, and especially of the Senecas, in relation to
the amended treaty. He did so in the month of August last, and the
minutes of the proceedings of that council are herewith submitted.
Much opposition was manifested by a party of the Senecas, and from some
cause or other some of the chiefs of the other tribes who had in former
councils consented to the treaty appeared to be now opposed to it.
Documents were presented showing that some of the Seneca chiefs had
received assurances of remuneration from the proprietors of the land,
provided they assented to the treaty and used their influence to obtain
that of the nation, while testimony was offered on the other side to
prove that many had been deterred from signing and taking part in favor
of the treaty by threats of violence, which, from the late intelligence
of the cruel murders committed upon the signers of the Cherokee treaty,
produced a panic among the partisans of that now under consideration.
Whatever may have been the means used by those interested in the fee
simple of these lands to obtain the assent of Indians, it appears from
the disinterested and important testimony of the commissioner appointed
by the State of Massachusetts that the agent of the Government acted
throughout with the utmost fairness, and General Dearborn declares
himself to be perfectly satisfied that were it not for the unremitted
and disingenuous exertions of a certain number of white men who are
actuated by their private interests, to induce the chiefs not to assent
to the treaty, it would immediately have been approved by an immense
majority--an opinion which he reiterated at Cattaraugus. Statements were
presented to the Secretary of War at Cattaraugus to show that a vast
majority of the New York Indians were adverse to the treaty, but no
reasonable doubt exists that the same influence which obtained this
expression of opinion would, if exerted with equal zeal on the other
side, have produced a directly opposite effect and shown a large
majority in favor of emigration. But no advance toward obtaining the
assent of the Seneca tribe to the amended treaty in council was made,
nor can the assent of a majority of them in council be now obtained.
In the report of the committee of the Senate, upon the subject of this
treaty, of the 28th of February last it is stated as follows:
But it is in vain to contend that the signatures of the last ten, which
were obtained on the second mission, or of the three who have sent on
their assent lately, is such a signing as was contemplated by the
resolution of the Senate. It is competent, however, for the Senate to
waive the usual and customary forms in this instance and consider the
signatures of these last thirteen as good as though they had been
obtained in open council. But the committee can not recommend the
adoption of such a practice in making treaties, for divers good reasons,
which must be obvious to the Senate; and among those reasons against
these secret individual negotiations is the distrust created that the
chiefs so acting are doing what a majority of their people do not
approve of, or else that they are improperly acted upon by bribery or
threats or unfair influences. In this case we have most ample
illustrations. Those opposed to the treaty accuse several of those who
signed their assent to the amended treaty with having been bribed, and
in at least one instance they make out the charge very clearly.
Although the committee, being four in number, were unable to agree upon
any recommendation to the Senate, it does not appear that there was any
diversity of opinion amongst them in regard to this part of the report.
The provision of the resolution of the Senate of the 11th of June,
1838, requiring the assent of each of the said tribes of Indians to
the amended treaty to be given in council, and which was also made a
condition precedent to the recommendation to me of the Senate of the 2d
of March, 1839, to carry the same into effect, has not, therefore, been
complied with as it respects the Seneca tribe.
It is, however, insisted by the advocates for the execution of the
treaty that it was the intention of the Senate by their resolution of
the 2d of March, 1839, to waive so much of the requirement of that
of the 11th of June, 1838, as made it necessary that the assent of
the different tribes should be given in council. This assumption is
understood to be founded upon the circumstances that the fact that
only sixteen of the chiefs had given their assent in that form had
been distinctly communicated to the Senate before the passage of the
resolution of the 2d of March, and that instead of being a majority that
number constituted scarcely one-fifth of the whole number of chiefs, and
it is hence insisted that unless the Senate had so intended there would
have been no use in sending the amended treaty to the President with the
advice contained in that resolution. This has not appeared to me to be
a necessary deduction from the foregoing facts, as the Senate may have
contemplated that the assent of the tribe in the form first required
should be thereafter obtained, and before the treaty was executed, and
the phraseology of the resolution, viz, "that whenever the President
shall be satisfied," etc., goes far to sustain this construction. The
interpretation of the acts of the Senate set up by the advocates for the
treaty is, moreover, in direct opposition to the disclaimer contained in
the report of the committee which has been adverted to. It is at best an
inference only, in respect to the truth of which the Senate can alone
speak with certainty, and which could not with propriety be regarded
as justifying the desired action in relation to the execution of the
treaty.
This measure is further objected to on the ground of improper
inducements held out to the assenting chiefs by the agents of the
proprietors of the lands, which, it is insisted, ought to invalidate
the treaty if even the requirement that the assent of the chiefs should
be given in council was dispensed with. Documentary evidence upon
this subject was laid before you at the last session, and is again
communicated, with additional evidence upon the same point. The charge
appears by the proceedings of the Senate to have been investigated by
your committee, but no conclusion upon the subject formed other than
that which is contained in the extract from the report of the committee
I have referred to, and which asserts that at least in one instance the
charge of bribery has been clearly made out. That improper means have
been employed to obtain the assent of the Seneca chiefs there is every
reason to believe, and I have not been able to satisfy myself that
I can, consistently with the resolution of the Senate of the 2d of
March, 1839, cause the treaty to be carried into effect in respect to
the Seneca tribe.
You will perceive that this treaty embraces the Six Nations of New York
Indians, occupying different reservations, but bound together by common
ties, and it will be expedient to decide whether in the event of that
part of it which concerns the Senecas being rejected it shall be
considered valid in relation to the other tribes, or whether the whole
confederacy shall share one fate. In the event of the Senate not
advising the ratification of the amended treaty, I invite your attention
to the proposal submitted by the dissentients to authorize a division
of the lands, so that those who prefer it may go West and enjoy the
advantages of a permanent home there, and of their proportion of the
annuities now payable, as well as of the several pecuniary and other
beneficiary provisions of the amended treaty.