ES_ 
 
 E 
 
 99 
 C5E93 
 
 EVERtn 
 
 SPEECH OF MR. 
 EVERETT, OFMASSA. 
 CHUSETTS 
 
THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
Mr EVERKTT, OF MASSACHUSETTS, 
 
 IN THE riOUSE OF REPRESENTATIVES, 
 
 On the 14//i and 2lst of February, 1831, 
 
 ON IHE KXECtlTION OF THE LAWS AND TREAIIES 
 ZN FAVOR OF THIS INDIAN' THIBSS. 
 
 [On Monday, Yxh February, 1831, MrE. Etewett prrsented to tlu^ House of RepresenU' 
 fives the petition of sundry citizens of Massachusetts, praying that the Indian Tribes may be 
 protected in the rights secured to them by the laws of ArUnited States, and the treaties 
 subsisting' between the United States and the said tribes. In presenting tliis memorial, Mr 
 Everett observed, that he had long felt it to be the duty of the House to consider the all- 
 important subject of this memorial. He should himself, by way of resolution, have called 
 the attention of the House to the subject, had no other member expressed an intention of 
 doing so, if it had been possible, under the rules of the House, to move a resolution. But 
 it was known to the Chair that, for several weeks p.ist, there had not been a moment when 
 it was in order to move a resolution.* A petition from a very respectable community in 
 the State which he had the honor, in part, to represent, had been placed in his hands. By 
 the rules of the House, a petition cannot be debated on the day on which it is presented, 
 l)ut must lie on the table one day. As petitions are received only one day of the week — on 
 Mondays — Mr E. observed that the memorial which he presented must, under these rules, 
 lie on the table till that day, and then come up as the unfinished business of petitions. He 
 begged leave, therefore, in presenting this petition, to give notice, that, when it should 
 come up, on Monday next, he should feel it his duty to ask the attention of the House to the 
 very important question of protecting the Indian Tribes, in the possessions and rights secured 
 to them by treaty and laws of the United States. 
 
 On Monday, the 14th of February, the subject, according to this notice, came up. A mo- 
 tion was submitted by Mr Everett, that the petition should be referred to the Committee 
 on Indian Affairs, with instructions to report a bill making further provision for executing the 
 laws, relating to the intercourse of citizens of the United States with the Indian Tribes ; and 
 also for the faithful observance of the treaties between the United States and the said tribes. 
 
 This motion was supported by Mr Everett, in a speech delivered on the 14th and 2l8t 
 of February, in substance as Ibllows:] 
 
 Mr Speaker : In presenting this subject last week to the House, I observed, that it was 
 witli regret that I found myself obliged to bring it forward in a manner, strictly parliameHt- 
 ary indeed, but somewhat unusual. I should have preferred to submit this great subject to 
 the consideration of the House by i he more usuul course of a resolution. I have had are- 
 solution prepared for that purpose, and l\iMg in my desk for several weeks ; but the Chair 
 knows that there has not been a moment, for several weeks, when a resolution could be of- 
 fered but by the unanimous consent of tlie House. Such consent I could not ask on such a 
 subject. 1 should have been better pleased to meet the subject on a report from the In- 
 dian Committee, to whom, in connexion with very numerous memorials from various parts of 
 the country, wltli the President's Message, and with the petitions of the Creek and Cherokee 
 Indians, it has been referred.. No report, however, lias proceeded from that committee, and 
 no intimation lias been given that any is to be expected. 
 
 In this state of things, urged by my sense of duty, admonished by several expressions of 
 public sentiment committed to my charge by the people I represent, and looking upon the 
 subject as one of great, of paramount — aye, sir, of most painful importance — a subject em- 
 inently requiring the interposition of this House, — I have felt myself ponstrained (in the for- 
 
 • The bournrthe «1ay aiaigned to resolutions beingf {ire-occupieil with the discuision^f another •ubjeot, 
 
 1848S15 
 
bearaftcfi of othew much better qualified to take this step) to make this effort to bring it 
 under the consideration of the representatives of the People. 
 
 I should think, sir, that a positive decision of this ^estion by Congress would be highly 
 desirable to the friends of the Administration. They cannot, I should think, wish to leave 
 with tlie iGxecntive the responsibility of sitting stdl and witnessing the violation of a very 
 large nurriier of treaties and compacts, and of the clearest provisions of law. No man surely 
 can pfttciHl that such a policy can be within the competence of the Executive ; and if, for 
 reasons of necessity, or reasons of State, or any otlier reasons, the treaties with the Indians 
 are to be annulled, and the laws touching our intercourse with them converted into a dead 
 letter, it surely cannot require an argument to prove, that Congresss is the only power by 
 which this can be done with any show of rightful authority. 
 
 I cannot disguise my impression, tliat it is the greatest question M'hich ever came before 
 Congress, short of the question of peace and war. It concerns not an individual, but entire 
 communities of men, whose fate is wholly in our hands.and concerns them not to the extent 
 of affecting their interests, more or less favorably, within narrow limits. As I regard it, it 
 is a question of inflicting the pains of banishment from tlieir native land on seventy or eighty 
 thousand human beings, the greater part of whom are fixed and attached to their homes in 
 the same way that we are. We have lately seen this House in attendance, week after week, 
 at the bar of the other House, while engaged in solemn trial of one of our ow||function- 
 aries, for having issued an or^r to deprive a citizen of his liberty for twent) -four Hours. It 
 is a most extraordinary and ast<(||shing fact, that the policy of the United States toward the 
 Indians — a policy coeval witii the Hevolution, and sanctioned in tiie most solemn manner on 
 innumerable occasions — is undergoing a radical change, whicli, I am persuaded, will prove 
 as destructive to the welfare and lives of its subjects as it will to their rights ; and that nei- 
 ther this House, nor the other House, has ever, even by resolution, passed directly upon the 
 question. 
 
 But it is not merely a question of tlie welfare of (hese dependent beings, nor yet of the 
 honor and faith of the country whicli are pledged to them — it is a question of the Union it- 
 self. AVhat is the Union ? Not a mere abstraction ; not a word ; not a form of Government ,- 
 it is the undisputed paramount operation, tlu'ough all the States, of those functions with 
 which tlic Government is clothed by the Constitution. When that operation is resisted, the 
 Union is in fact dissolved. I will not now dwell on this idea ; but the recent transactions in 
 Georgia have been already hailed in tiie neighboring British provinces as the commencement 
 of tliat convulsion of these U.iited States, to which tlie friends of liberty throughout the 
 world look forward with apprehension, as a fatal blow to tlieir cause. 
 
 If any further apology were needed for bringing this matter before the House, it might 
 be the fact that it has been frequeritly referred to us. It has formed a prominent topic in 
 the two annual communications of the Chief Magistrate. Numerous memorials on both sides 
 of the question have presented it to us; reports in both Houses of Congress have discussed it ; 
 but owing to some strange fatality it has never been plainly and decidedly met. 
 
 The Secretary of War tells us that a new era has within a few years arisen in relation to 
 our Indian affairs. He does not indicate precisely what marks tlie new era ; but in one re- 
 spect there has unquestionably arisen a new era in this department, that of substituting Ex- 
 ecutive decision for Congressional enactment. Formerly, the Executive only carried into 
 effect our laws and treaties made by the treaty-making branch of the Government. 
 Now the President, 1st, permits the States to annul the treaties, and to proceed on their de- 
 clared want of validity ; and, 2d, annals the laws himself, and permits his Secretary to come 
 down to Congress, with an argument to prove that a law substantially coeval with the Go- 
 vernment is unconstitutional. 1 am willing to receive the Secretary's argument for what it is 
 worth ; but really, sir, I have studied the Constitution unsuccessfully, if the mere opinion 
 of a Secretary, with or without an argument, renders a law unconstitutional, and makes it 
 cease to be obligatory. But lo this I shall return, repeating only now, that the assumption 
 of these two principles in our Indian affairs does, indeed, constitute a new era. 
 
 Sir, I know the delicacy of this subject. 1 approach it with reluctance and pain, under the 
 most imperious sense of duty. I would gladly have put it by, could I have justified mjself 
 in so doing. I know, by past experience, the odium I am to incur. I know that, humble 
 as I am, the denunciations of hundreds of presses throughout the country await me. I have 
 seen within a week, in a paper published at this place, and which has been made the chan- 
 nel of the most confidential communications between the President and tlie People ; I have 
 seen the course of the minority of this House who voted on the Indian bill last year — a mi- 
 nority comprising some of the most respectable friends of the President, and amounting to 
 very nearly one-half of the House — ascribed to vile faction. 
 
 '--^- But, disagreeable as the consequence may be, to one who loves strife as little as I, I cannot 
 keep silence, when 1 hear the laws of the land declared unconstitutional, by those executive 
 • fficers who have no other duty in reference to the laws, but to enforce them ; wlien T see 
 treaties violated by States wiio are parties to tiiein ; treaties s:inctioned by all tiie forms of 
 the Constitution, and ratified by the Senators representing the very States foremost in the 
 violation. 1 cannot V:eep silence when I see the Constitution invadf^d ; the honor of the 
 
country tarnished ; the Union impaired. If my whole course durinjj the six years that I 
 have been honored with a seat on this floor, will not protect mc in the judijment of otiiers 
 from the imputation of vile and factious motives ; I shall iiave at least tiie censciousness 
 in my own bosom, that a sense of public duty, and that alone, has impelled me to the course 
 I have taken. 
 
 Sir, the Secretary says a new era has arisen in our Indian affairs. This is true. Up to 
 the year 1828, the course of proceeding in our Indian affairs is well known, at least in re- 
 ference to all tlie tribes, wiiose rights are now in controvers) . The United States had nego- 
 tiated treaties with all the Southwestern tribes. Our relations with them and the boundary 
 between them and us were regulated by treaty < and by the Intercourse law framed in 
 pursuance of the same policy. A limited and qualified sovereignty, sufficient to enable them 
 to contract these treaty obligations, was conceded to the tribes. No State had pretended to 
 extend her laws over either of these ti-ibes till the year 1828. To show the various views 
 entertained of this subject, I will cite several authorities, which will abundantly sustain me 
 in this position. The distinguished individuals whom I quote, and the present chief magis- 
 trate at the head of them, took views somewhat different from each other, but none of 
 them, [ believe, mtimated, that the separate States possess the right now claimed. 
 
 In 1821, the Creek Path Indians being dissatisfied with the conduct of their brethren of 
 the upper towns, applied to General Jackson, tlien Major General of the Southern division, 
 requesting him to use his influence with the General Government to procure for the said 
 Creek Path Indians an inalienable reservation of a part of their lands, on consideration of 
 selling their proportionate sliare of tiie common lands of the Nation. 
 
 General Jackson was in favor of this project, and wrote to. Mr. Calhoun, then Secretary 
 of War, as follows : 
 
 "I do believe, in a political point of view, as well as in justice to tliese people, their prayer 
 ought to be noticed. It is inviting Congress to take up the subject, and exercise its power, 
 under ike Hopewell treaty, of regulating all the Indian concerns as it pleases. This is a pre- 
 cedent much wanted, that tlie absurdity in politics may cease of an independent sovereign 
 nation, holding treaties with people living within its territorial limits, acknowledging its 
 sovereignty and laws, and who, although not citizens, cannot be viewed as aliens, but as 
 real subjects of the United States." Here the right of legislating for the Indians is claimed, 
 not for the States, but for t!ie United Stales ; and this under the treaty of Hopewell, a treaty 
 negotiated before the adoption of the Federal Gunstitution, and containing the amplest 
 guaranties of the rights of the Cherokees. 
 
 In treating with the Cherokee Indians in 1823, Messrs. Campbell and Meriwether, citi- 
 zens of Georgia, animated by a strong zeal for the acquisition of Indian lands, use this lan- 
 guage : " The sovereignty of the country, wliich you occupy, is in the United States alonej 
 no Stale or foreign power can enter into a compact with you. These privileges have 
 passed away, and your intercourse is restricted exclusively to the United States." 
 
 In the year 1824, March 10th, the Cherokees are spoken of, in the following manner, in 
 a letter addressed by the Senators and Representatives of Georgia, to the Secretary of War : 
 If tlie Cherokees are " to be viewed as other Indians, as persons suffered to reside with- 
 in the territorial limits of tlie United States ; and subject to every restraint, which the policy 
 and power of the General Government require to be imposed on them, for the interest of the 
 Union, the interest of the particular States and their own preservation, it is necessary that 
 these misguided men should be taught by the General Government, that there is no alterna- 
 tive between their removal beyond the limits of the State of Georgia and their extinction." 
 
 In 1824 Judge White, now the distinguished Senator from Tennessee, gave an opinion, in 
 which he expressed himself as follows : 
 
 ** Under the parental care of the Federal Government, the Cherokees have been in a 
 good degree reclaimed from their savage state. Under their patronage, they have become 
 enlightened ; they have acquired a taste for property of their own, from the use of which 
 they can exclude all others ; they have acquired the property itself. There must be laws 
 tOj protect it, as well as to protect those who own it. By what community ought these 
 laws to be enacted ? Laws there have always been, and laws there must continue to be, 
 emanating from some powers capable of enacting them. Where is that power ? It must 
 be in Congress, or in tlie Cherokees. Congress has never exercised it, the Cherokees al- 
 ways have. I have never heard that their power ivas doubted." 
 
 Governor Troup, in 1825 , March 25th, issued a Proclamation, from which the following ig 
 an extract : 
 
 " Whereas it is provided in said treaty, that the United States shall protect the Indians 
 against the encroachments, hostilities, and impositions, of the whites, so that they suffer no 
 interruption, molestation, or injury, in their persons, goods, effects, tlieir dwellings, or the 
 lands they occupy, until their removal shall have been accomplished, according to the terms 
 of the treaty : 
 
 " I have therefore thought proper to issue this my proclamation, warning all persons, 
 citizens of Georgia, or others, against trespassing or intruding upon lands occupied by the 
 Indians, within the limits of this State, either for the purpose of settlement or otherwise, as 
 
every such act will be in direct Tiolation of tlie provisions of tlie treaty aforesaid, and will 
 expose tlie aj^gressors'to tiie most certain and summary punishment, by the authorities of 
 the State and the United States. 
 
 "All good citizens, therefore, pursuing the dictates of good faith, will unite in enforcing 
 the obligations of the treaty, as the supreme law" &c. 
 
 Governor Troup, being exceedingly desirous to hasten the survey of the lands, acquired 
 by the treaty of the Indian Springs, asked permission to survey them, of General M'liv- 
 tosh, the Chief of the emigrating party, as a necessary preliminary. 
 
 In 1826, a Senator from Mississippi, now deceased, (Mr. Heed,) disclaimed any right, on 
 the part of tlie State, to extend her jurisdiction over the Indians. " At tiie last session, 
 said he, of the Legislature of iMississippi, a proposition was made to extend the civil power 
 of their courts to their own citizens, who had contracted debts within the State, and had 
 fled to this savage sanctuary. The matter was debated many days, and it was at last decid- 
 ed that there existed no power in the State, to extend its laws in the manner sought by the 
 proposition." 
 
 These authorities, I think, will abundantly prove that the claim of tiie Soutliern States to 
 exercise jurisdictiiMi over tribes, with wliom there are existing treaties, forms a new era. 
 Whether it be that to which the Seeretary of War alludes, I pretend not to decide. 
 
 While the Secretary of War announces this new era, the President in liis Message at the 
 opening of the Session informed us, that "the benevolent policy of tlie Government, stead- 
 ily pursued for nearly thirty years, in relation to the removal of the Indians beyond the white 
 settlements, is approaching to a happy consummation." 'I'his statement appears to me at 
 variance with that, wliicli was made in the annual message of the last year. In that docu- 
 ment we svere loJd, that " it has long been the policy of Guvcrnmenl \.o\ni\-ui\\icz Avnon^ 
 Indians the arts of civilization, in the hope of gradually reclaiming them from a wandering 
 state." This is certainly a benevolent policy : and this is the pohcy, which has been stead- 
 ily pursued for nearly thirty years. But last year, the President added : "this policy has, 
 however, been couiiled with another, ivholly incompatible with it.t success. Professing a de- 
 sire to civilize and settle tliem, we have, at the same time, lost no opportunity to purchase 
 their lands, and thrust tliem furtlier into the wilderness. By this means, tliey have not only 
 been kept in a wandering state, but have been led to look upon us as unjust and indiffer- 
 ent to their fate. Thus, though lavish in its expenditures on the subject. Government has 
 constantly defected its own policy." 
 
 Last year the benevolent policy of settling and civilizing them had been thwarted by 
 another, that of removal to the west, declared to be incompatible with its success. This 
 year the removal to the west is declared to be the benevolent policy, which has been stead- 
 ily pursued. In my judgment, the view taken in the message of lust year is the sounder. 
 
 But the policy of removal has, 1 grant, been pursued steadily for thirty years, but never 
 in the same manner, as now. It was never tliought of, that all the treaties and laws of the 
 United States protecting the Indians could be annulled, and the laws of the States extend- 
 ed over them ; laws of such a character that it is admitted, nay urged, that they cannot live 
 under them. The policy of removal has been pursued by treaty, negotiated by persuasion, 
 urgency, if gentlemen please, with importunity. But the compulsion of State legislation and 
 of the withdrawal of tlie protection of the United States was never before heard of. If the 
 President means that the policy of removal under this compulsion is thirty years old, I do 
 not know a fact, on which his proposition can stand for a moment. However pursued, the 
 policy of removal had been attended with limited success. Vasttractsof land had indeed been 
 acquired of the southwestern tribes, but chiefly by bringing their settlements within nar- 
 rower limits. Between the years of 1809 and 1819, about one-third of the Cherokces went 
 over to Arkansas, and the hardships and suflferings encountered by them were a chief cause 
 why their brethren, the residue of the tribe, resisted every inducement held out to persuade 
 thew also to emigrate. Tlie Choctaws, by the treaty of Doak's Stand, acquired a large 
 tract of country between the Ued Itiver and the Canadian ; but would not in any consid- 
 erable numbers emigrate to it In 1826, a part of the Creeks were forced by the convul- 
 ■ions in that tribe to emigrate, under the treaty of that year. In 1828 the Choctaws and 
 Chickasaws sent a deputation to explore the country west of Arkansas, which returned dis- 
 satisfied with its appearance. 
 
 While the policy of removal was going on with this limited success, that of civilization^ 
 the truly benevolent pohcy, was much more prosperous. The attempt to settle, to civilize, 
 and to christianize some of these tribes succeeded beyond all example. If the accounts of 
 their previous state of barbarism are not exaggerated, tlie annals of the world do not, to my 
 knowledge, pi'csent another instance of improvement so rapid, within a single generation ^ 
 unless it be that which has been efTected, by a similar agency, in the Sandwich Islands, 
 within the last ten years. 
 
 During all the time that these two processes were going on, that of removal (declared 
 last year by the President to be inconsistent with civilizing them) with partial success ; and 
 that of settling and improving their condition, on this side of the Mississippi, in which the 
 success had been rapid and signal, no attempt was made to encroac^ -^ Uieir limited indc- 
 
pendence- The right of the United States to treat with them was not questioned ; tiie 
 States never attempted to legislate over them ; and the possessions and rights guarantied to 
 them by numerous treaties were considered by them and by us, as safe beneath the protec- 
 tion of the National Faith. But at length, '/under the late administration of the General Go- 
 vernment, tl e south-western States, takirig- advantage of the political weakness of that 
 administration, seemed determined to adventure the experiment, how far they could go, to 
 effect by a new course of State legislation, a revolution in the Indian policy of the country. 
 
 Georgia led the way. In 1828 she passed a summary law to take effect prospectively, 
 extending her jurisdiction civil and criminal over the Indian tribes within her limits. In 1829 
 this law, with more specific provisions, was re-enacted, to take effect on the first day of June 
 1830. This example of Georgia was imitated by Alabama and Mississippi. By these State 
 aws, the organization previously existing in the Indian tribes was declared unlawful, and was 
 annulled. It was made criminal to exercise any function of Government under autliority de- 
 rived from the tribes. The political existence of these communities was accordingly dis- 
 solved, and their members declared citizens or subjects of the States. What a contrast, in 
 two or three years ! In 1826, after many days' debate, the Legislature of Mississippi decid- 
 ed, that it had no right to pass a law to pursue its own citizens, being fugitive debtors, into 
 the Indian country. In 1829, the same State extends all its laws over tlie Choctaws, abro- 
 gates their Government, and denounces the punishment of imprisonment on any person who 
 should exercise any office under the authority of the tribe. 
 
 Tlie Indians, as was natural, looked to the Government of the United States for protec- 
 tion. It was the quarter whence they had a right to expect it ; where, as I think, they 
 ought to have found it. They asked to be pi-otected in the rights and possessions gu.irantied 
 to tliem by numerous treaties, and demanded the execution, in their favor, of the laws of the 
 United States governing the intercourse of our citizens with the Indian Tribts. \They came 
 first to the President, deeming, and rightly, that it was his duty to afford them this protec- 
 tion. They knew him to be tlte supreme Executive Officer of the Government ; that as 
 such lie had but one constitutional duty to perform toward the treaties and laws — tlie duty 
 of executing them. The President refused to afford the protection demanded. He in- 
 formed tliem, tliat he had no power, in his view of the rights of the States, to prevent their 
 extending their laws over the Indians ; and the Secretary of War, in one of liis communica- 
 tions to them, adds the remark, that the President had as little inclination as power to do so. 
 
 When this decision of the President was taken, does not certainly appear. On the 23d 
 day of March, 1829, he informed a Delegation of Creek Indians, that, if they remained, tliey 
 mast become subject to the law of Alabama. On the 11th of April, the superintendent of 
 the Bureau of Indian Affairs, by direction of the Secretary of War, stated to the Cherokee 
 Delegation, " That the Secretary of War is not now prepared to decide the question in- 
 volved in the act of the Legislature of Georgia, to which you refer, in wiiich provision is 
 made for extending the laws of Georgia over your People, after the 1st June, 1830. It is 
 a question which will doubtless be tlie subject of Congressional inquiry, and what is proper 
 in regard to it will no doubt be ordered by that body. 
 
 " In regard to the act of Georgia, no remedy exists short of one which Congress alone 
 can apply." 
 
 On the 18th of the same month, a letter of the Secretary ef War, to the same delegation, 
 tells them, in the most positive terms, that the Indians must submit to tiie State laws. 
 
 On the 14th October, the Secretary, writing to Governor Forsyth, uses this language : 
 " At an early period, therefore, when this question arose, the Cherokees were given dis- 
 tinctly to understand that it was not within the competency or power of the Executive to 
 call in question the rigl;t of Georgia to a sseit her own authority within her own limits, 
 and the President has been gratified to witness tlie extent to which a principle so reasonable in 
 itself, and so vitally important to Slate Sovereignly, has received the approbation of his fellow- 
 citizens. This oft asserted and denied right being settled, on the side of the State, to the 
 extent that Executive interference could go, it was expected and hoped that a little longer 
 •ontinuance of that forbearance which Georgia has so long indulged, was all tiial was wanted 
 to assure to her the purposes and objects she had before her : and after a manner, too, to 
 which philanthropy could take no exception." 
 
 Such was the fate of the question which was to be the subject of Congressional inquiry. 
 In what way tliat popular sanction had been given, whicHlfthe President appears to have 
 taken in licu of any legislative decision of this question, does not appear. 
 
 At the ensuing session of Congress, a memorial was presented to this House, signed by 
 three thousand and eighty-five individuals of the Cherokee tribe. Another memorial was 
 laid upon our tables from the Creeks. The subject was also presented to us in the annual 
 message of the President, disclosing a state of tacts which seemed to require, as well as to 
 invite, the decisive action of Congress. Finally, the public mind was extensively awaken- 
 ed. Very numerous memorials, on the subject of the revolution which was going on in our 
 Indian policy, were sent in to Congress. Some of these (and of this character was the 
 ^rat presented) approved the change : by far the greater part condemned it. 
 
 In this way the question of the right of the State to extend her laws over Indian tribes. 
 
in contravention of treaties and the laws of the United Stales, was brought before Congress 
 in tlie fullest and amplest manner. It was not, however, directly iret. Tlie President had, 
 in the recess of Congress, declared that he could not and would not enforce the treaties and 
 laws. The Secretary of War had almost sneered at tlie idea, that the Indians could possess 
 rights under a treaty forty years old; as if the validity of a treaty were impaired by the 
 length of time its provisions had been in force. ' But the treaties were still preserved in 
 our archives. Tiie intercourse law founded upon them still stood unrepealed on the Statute 
 Book ; and it appears to me that the proper way in which this question was to be met, 
 would have been a proposition to repeal the laws and abrogate the treaties. 
 
 In my judgment there was an error in the first step taken by the President. He decided 
 a question Wl)ich he had no constitutional competency to decide. Wiien the first move- 
 ment was made by the States, he should have interposed to maintain the treaties and enforce 
 the laws,aiid have referred the subject to Congress. What other power has the Executive over 
 a treaty or a law but to enforce it ? The principle assumed by the President and by the Se- 
 cretary is, that w henever the Executive tliinks a law unconstitutional he may forbear to ex- 
 ecute it. Now, how will this operate on other questions ? Suppose Mr. Adams had thought 
 the compact of 1802 unconstitutional, (as it was held to be in tliis debate last winter bj' a Se- 
 nator from Alabama) could he have refused to enforce it ; could he have forborne to expend 
 an appropriation granted to carry it into effect ? The President has plainly intimated, that 
 the Bank of the United States is unconstitutional. Is he thereby authorized to p\it it out of 
 the pale of the law ? A very respectable ])ortion of the community regards the tariflas un- 
 constitutional, and propositions have been made to annul it, by the authority of a State and 
 within its limits. But who ever heard that the President and the Secretary of the Treasury 
 might between tiiem declare it unconstitutional, and as such null and void? The intercourse 
 law was ^»assed as it stands in 1802 ; the substance of it was enacted in 1791, and the Secre- 
 tary of War, with the full concurrence of tlie President, lays his hand on this law, which is 
 forty years old, tells us it is unconstitutional, and as such not obligatory. 
 
 Let us but consider the extravagance of this doctrine. The (;onstitution gives to the 
 President n veto on an act of Congress in its passage, and if he withholds his signature it fails 
 to become a law. But even without the sanction of his name, without the Executive concur- 
 rence which may be witliholden on the very ground of unconstitutionality, the act becomes a 
 law if two-thirds of Congress adhere to it. But of what use is this or any other limitation on 
 the exercise of the President's veto, if he may annul any law and all the laws in the statute 
 book, on the simple opinion that they are unconstitutional ? 
 
 But what, it may be asked, is the President to do: how is he to proceed with an unconstitu- 
 tional law ? I answer this question, by asking- another, how is he authorized to arrive at the 
 conclusion, that a law is unconstitutional ? Is he created by the Constitution, a functionary 
 to pass on the unconstitutionality of laws ? I can find no such power given him in the Con- 
 stitution. •' 
 
 It is one thing for a law to be ascertained and declared unconstitutional, by the competent 
 ti'ibunal, and another thing for it to be thaught unconstitutional, by any citizen or officer call- 
 ed on to obey or to enforce it. 
 
 The citizen is not bound to obey an unconstitutional law; for it is no law. But if he under- 
 takes to disobey a law because, in his private judgment, it is unconstitutional, it is at his risk 
 and peril ; and it will not probably be long, before some process of law wdl teach him that 
 he is not authorized finally to adjudicate such a question. An Executive officer, high or low, 
 is certainly not bound to execute an unconstitutional law ; but his simply thinking it to be 
 unconstitutional is a very different affair. 
 
 Suppose a collector should think the tariff unconstitution.d ; could he forbear I o collect 
 the duty ' Could the Secretary of the Treasury, holding the same opinion, remit the duty ? 
 Could the President direct his Secretary to remit it ? 
 
 In the Government under which we five, a power is provided to pass on the constitution- 
 ality of laws. The President is not that tribunal. His office is executive. The opinion he 
 holds of the constitutionality of a law, (except when called to sign it on its passage) he 
 holds not officially but as any other citizen, at his peril ; and as it is his sworn duty to 
 execute the laws, if he refuses to execute a law, for whatever cause, he is guilty of a high 
 breach of official duty, and .conunits an impeachable od'ence. It is the province of this 
 House to hold him to his duty. " 
 
 There is no end to the absurd consequences which would flow from an opposite principle. 
 To what would it not lead ? If the President may annul a law, which he thinks unconsti- 
 tutional, the Secretary may annul another which he thinks unconstitutional ; and so may any 
 of his clerks. The clerk of your House may refuse to carry a bill which you pass to the Se- 
 nate, if he thinks it unconstitutional ; for in that case, it is no more a law, on this principle, 
 than an old newspaper. And if gentlemen contend that they reserve to the President alone this 
 dispensing power of refusing to execute laws, which in his private judgment are unconstitu- 
 tional, they merely give us, instead of the anarchy which would arise from its being possess- 
 ed by all the Executive officers, a perfect Oriental despotism produced, by imparting it to one. 
 We have heard a good deal gald about nullification, and no small opprobrium attached 
 
to the word. Has It never oceurred to some gentlemen, willing enough io stigmatize ihnt 
 doctrine, that they themselves have lent their countenance to the same doctrine, not in theo- 
 ry alone, but in practice ? Georgia orders a survey of the Cherokee lands. The law of 
 1802 makes it highly penal to survey lands belonging or secured to Indian tribes by treaty. 
 It subjects those who transgress thelawto athousand dollars fine and twelve months' imprison- 
 ment, and authorizes the President to call out a military force to execute the law. The Pre- 
 sident tells all concerned that he will not enforce tlie law, because he thinks it unconstitu- 
 tional. Is not that nullification ? The convention of the Judges of Georgia decide all the 
 Indian treaties to be unconstitutional. Is not that nullification ? And yet, if I mistake not, 
 propositions have been made in tlie quarter where this nullification is practised by wholesale, 
 to censure the doctrine as theoretically advanced in a neighboring State. 
 
 I have remarked that tlie direct way to meet this question would have been to propose a 
 law abrogating the treaties and repealing the intercourse law of 1892. 
 
 But a different course was pursued. A bill was presented, ably drawn and carefully 
 vorded, so as to leave this question entirely aside. Although the bill was an integral part 
 of the policy of the Stales, designed to co-operate with it, and in fact built upon it as upon 
 a foundation, it was so worded as not, in terms, to afford it any sanction. We were obliged 
 to go to the President's Message, and to the reports of the committees of the two Houses 
 of Congress, to ascertain its character. We did so ; and wc discussed the policy, as it dis- 
 covered itself in those documents. 
 
 But, harmless as the bill was in its terms, it could riot have passed, but for the amendment 
 moved by the gentleman from Pennsylvania, (Mr. Ramsat,) by which amendment it was 
 provided tliat " nottiing in this act contained shall be construed as autiiorizing or directing 
 the violation of any treaties existing between the United States and any Indian tribe." I 
 was perfectly well persuaded, at the time, that this proviso would be without practical ef- 
 fect ; but it saved the bill from being lost ; and now, from one end of the continent to the 
 other, this proviso is lield up to show tliat the Indian Bill of l;\st Winter does not sanction 
 the compulsory removal of the Indians ; that the treaties are to be held inviolate ; and that 
 the Indians are to be protected in their riglits ; all the while tliat it is perfectly notorious, 
 as I shall demonstrate before I sit down, that the Indians are not to be protected ; that the 
 treaties are violated ,- and that this proviso is a dead letter. 
 
 The bill passed, we all remember how, under the severest coercion by the previous 
 question, that I have ever known, applied, too, for the purpose of shutting out the amend- 
 ment of the gentleman from Pennsylvania, (Mr. Hemphill,) the object of which was to 
 obtain information, in respect to the cliaracter of the country, to wliich the Indians were to 
 be removed. For I beg it may be recollected, after all we have heard of the factious course 
 pursued by the minority^ that all we asked was the adoption of tlie amendment of the gen- 
 tleman from Pennsylvania, which proposed to send a respectable commission into this region, 
 to see if it be fit for the habitation of the fellow-beings whom we are driving from their 
 homes ; and that this was denied us. 
 
 Still the act seemed to promise something to the Indians, for it bore on its face, that the 
 treaties were not to be violated. Tlie money which it granted was granted conditionally : 
 the condition was contained in a proviso ; and, if that proviso were not acted up to, no ap- 
 propriation was made, and no expenditure was lawful. 
 
 Just two, or perhaps three, days after the passage of the act, the Georgia laws took effect 
 and went into operation over all the Indians included within the nominal boundaries of the 
 State. 
 
 And here I reach a part of the subject, on which I dwell wltii great pain, the legislation 
 of Georgia over the Cherokees. It is my duty to inquire into the character of the Georgia 
 laws, against which our interference is Invoked, and our protection demanded. I speak of 
 the laws of Georgia Individually, and not of the other States who have extended their juris- 
 di«tion over the Indians, because the legislation of Georgia is better known. I do not 
 single out her laws invidiously. Neitlier do I pretend an acquaintance with her whole code. 
 I have not seen it. A few laws only, that form a part of it, have come to my knowledge ; 
 but these are sufficient to establish my proposition, that these Indians have great and just 
 cause to look to us for'protection. 
 
 I will first speak of the elfect of the Georgia legislation upon the Cherokee government. 
 The Ciierokees, sir, have a very respectable rejiresentative government ; respectable in its 
 character ; respectable in its origin, 'i'he first sketch of it proceeded from the same pen, 
 that drafted our own Declaration of Independence. In 1809 Mr. Jeff"erson gave this People 
 the first elements of a system of Government, adapted to their condition, which I will ven- 
 ture to read to the House. 
 
 " My Children, Deputies of Ike Cherok4e Upper Towns. 
 
 1 have maturely considered the speeches you have delivered me, and will now give you 
 answers to tlie several matters they contain. 
 
 You inlorm me of your anxious desires lo engage in the industrious pursuits of agricul- 
 ture and civilized life ; that finding it impracticable to induce the nation at large to join in 
 
th'n, yoii tvish ft line of separation to be established bet«reen the Tapper and Lower Towns,! 
 80 as to include all the waters of the Highwassee in your part ; and that having thus con- 
 flicted your society within narrower limits, you propose, within these, to begin the establish- 
 ment of fixed laws and of regular government. You say, that the Lower Towns are satis- 
 fied with the division you propose, and on these several matters you ask my advice and aid. 
 
 Witli respect to the line of division between yourselves and the Lower Towns, it must 
 rest on the joint consent of both parties. The one you propose appears moderate, reason- 
 able and well defined ; we are willing to recognize those on each side of tliat line as dis- 
 tinct societies, and if our aid shall be necessary to mark it more plainly than nature has 
 done, you shall have it. I think with you, that on this reduced scale, it will be more easy 
 for you to introduce the regular administration of laws. 
 
 In proceeding to the estabhshment of laws, you wish to adopt them from ours, and such 
 only for the present as suit your present condition ; chiefly indeed, those for the punish- 
 ment of crimes and the protection of property. But who is to determine which of our laws 
 suit your condition, and shall be in force with you ? All of you being equally free, no one 
 lias a right to say what shall be law for the others. Our way is to put these questions to the 
 vote, and to consider tliat as law for which the majority votes — the fool has as great a right 
 to express his opinion by vote as the wise, because he is equally free, and equally master 
 of himself. But as it would be inconvenient for all your men to meet in one place, would 
 it not be better for every town to do as we do — that is to say : Choose by the vote of the 
 majority of the town and of the country people nearer to that than to any other town, one, 
 two, three or more, according to the size of the town, of those whom each voter thinks the 
 wisest and honest est men of their place, and let these meet together and agree which of 
 our laws suit them. But these men know nothing of our laws. How then can they know 
 wliich to adopt } Let them associate in their council our beloved man living with them. 
 Colonel MeigB, and he will tell them what our law is on any point they desire. He will in- 
 form them also of our methods of doing business in our councils, so as to preserve order, 
 and to obtain the vote of every member fairly. I'his council can make a law for giving to 
 every head of a family a sepaiate parcel of land, which, when he has built upon and im- 
 proved, it shall belr>ng to him and his descendants forever, and whicli the nation Itself shall 
 have no right to sell from under his feet. They will determine too, what punishment shall 
 be inflicted for every crime. In our States generally, we punish murder only by death, and 
 all other crimes by solitary confinement in a prison. 
 
 But when you shall have adopted laws, who are to execute them ? Perhaps it may be 
 best to permit every town and the settlers in its neighborhood attached to it, to select some 
 of their best men, by a majority of its voters, to be judges in all differences, and to exe- 
 cute the law according to their own judgment. Your council of representatives will decide 
 on this, or such other mode as may best suit you, I suggest these things, my children, for 
 the consideration of the Upper Towns of ) our nation, to be decided on as they think best, 
 and I sincerely wish you may succeed in your laudable endeavors to save the remains of 
 your nation, by adopting industrious occupations and a government of regular laws. In 
 this you may rely on the counsel and assistance of the Government of the United States. 
 Deliver these words to your people in my name, and assure them of my friendship. 
 
 January 9, 1809. THOMAS JEFFERSON. 
 
 In 1817 this government received the sanction of the United States, in a treaty negotiated 
 in that year by the present Chief Magistrate, as a Commissioner Plenipotentiary for that pur- 
 pose. In the preamble to this treaty the incidents of 1809 are alluded to ; the ])urpo8e of 
 the Cherokees who remained on this side of the Mississippi, to begin the establishment of 
 fixed laws and a regular Government is recognized, together with the promise made by Mr. 
 Jefferson of the patronage, aid, and good neighborhood of the United States, alike to 
 those who emigrated and those who staid behind. This treaty was unanimously ratified by 
 l;he Senate of the United States. Thus originated and thus confirmed, the Cherokee Go- 
 vernment subsequently assumed a highly regular form, and an improved organization. Its 
 practical operation was excellent, and it did the United States no harm, because it was 
 assumed as the principle of our Government, that no change was to be wrought by the im- 
 proved institutions of ilie Cherekees on their relations with us. 
 
 Of the orderly and becoming manner in which the Cherokee Government was conducted, 
 we have the satisfactory testimony of Messrs. Campbell and Meriwether, who went among 
 them to negotiate a treaty in 1823. I read an extract from a letter addressed by them to 
 the Council of the Cherokee Nation, dated Newtown, 16lh October, 1823 : 
 
 " Friends and Brothers : We are happy that a short time has been consumed in the cor- 
 respondence betsveen you and the, State commissioners. 
 
 " This has afforded us an opportunity of becoming partially acquainted with several men»- 
 bers of this Council. For the whole body wc entertain a high respect, and we trust, that, 
 with some of you we have contracted individual friendships. In saying this, we do no vio- 
 lence to our feelings, neither do we lower the elevated character of the United States. Peo- 
 ple who have never seen you, know but little of your progress in the arts of civilized life, 
 and of the regular and becoming manne;- in wiiich your affairs are conducted. 
 
" Your improvement reflects the greatest credit upon yourselves, and upon the Govern' 
 uient by which you have been improved and fostered." 
 
 Such was and is the Cherokee Government which Georgia has avowed her purpose, by 
 one sweeping- act of legislation, to put down. That State has enacted a law making it high- 
 ly penal to exercise any of the functions of this Government. Chiefs, headmen, members 
 of the Council, Judicial and Executive offiqprs, are all subject to four years' imprisonment in 
 the penitentiary if tliey presume to exercise any of the functions of Government within their 
 own tribe, and under tiiat Constitution which we originally and repeatedly exliorted them to 
 frame. 
 
 In this way the greatest confusion is at once introduced into the concerns of this unhappy- 
 people. Tiieir own Government is outlaw ed, and it is made higldy penal to execute its func- 
 tions. Tlie pr()tection of the United States is witluh-aw.i, because Georgia has extended 
 her laws over the Indians ^ and Georgia herself, althougli asserting, and in many respects 
 exercising her juiisdiction, has not yet organized it in such a manner as to keep the peace 
 among Ihis afRicted race. Tiieir system of Government, instead of being regarded as almost 
 all Governments, however defective, are entitled to be, as an institution necessary for the 
 well being of the people, wliicli ought to be treated with tenderness, and not be destroyed 
 till a substitute is provided, has been abated and broken down as a nuisance. 
 
 But among the laws of Georgia extended '>ver the Cherokees, there are some which, 
 from their nature, must take an immediate effect; and among these 1 cannot but notice several 
 whose operation must be as injurious to the welfare of the Indians as the entire system is de- 
 structive of their rights. At the late session of the Georgia Legislature a law was passed 
 " that no Cherokee Indian should be bound by any contract, hereafter to be entered into, 
 with a white person or persons ; nor shall any Indian be liable to be fined in any of the 
 Courts of law or equity in tiiis State on such a contract." I am aware that laws of this kind 
 have been found necessary among the dwindling remnants of tribes in some of the States, 
 whose members are so degenerate that they are unable to preserve, against the arts of cor- 
 rupt white men, the little property they possess. But among the Cherokees are men of in- 
 telligence and shrewdness, who have acquired and possess large accumulations of property, 
 houses, shops, plantations, stock, mills, ferries, and other valuable possessions ; men who 
 understand property and its uses as well as we do, and who need all the laws which property 
 requires for its judicious management. Notwithstanding this, Georgia, at one blow, makes 
 all these people incapable of contracting. Men as competent as ourselves to all business 
 transactions, are reduced by a sweeping law to a state of pupilage. 
 
 [Mr. Foster, of Georgia explained, that this law was passed for the benefit of the Indians, 
 to prevent their being imposed ow. That it did not release white men from their engage- 
 ments to Indians, but Indians from their engagements to white men.] 
 
 I understood and stated the law precisely as the gentleman from Georgia states it. 
 1 know this character may be claimed for the law. But how does it seek the benefit of 
 the Indians ? By reducing them to a state of minority. Sir, it is for the benefit and 
 protection of children, that they are unable to contract ; but still they are children, 
 and the law holds them to their infancy. And what sort of a boon is it to men of large pro- 
 perty and active dealings to pass a law releasing them from their contracts ? Does it not di- 
 rectly follow, that, if they cannot be held to their contracts, no one will contract with them ; 
 and that the apparent hmilation of the law which exempts the Indian while it binds the white 
 man, is illusory ; for who will contract with a person who is by law exonerated from compli- 
 ance with his engagements ? Such a law can have no other effect among Indians than among 
 white men ; and what would be the effect on the business of a community of white men, to 
 enact a law releasing them from all engagements into which they might enter ? 
 
 By the law of Georgia of 1829, the testimony of an Indian was declared inadmissible in 
 any case, in which a white man is a party. Tliis law was generally condemned during the 
 discussions of last year. Tlie objections taken to it were declared by some of the advo- 
 cates of the course pursued by Georgia to be unreasonable, captious, and groundless, and 
 were set down to the score of morbid sensibihty and political philanthropy. Now, what 
 has been the practical operation of this feature in the Georgia law? Governor Gilmer thus 
 describes it in his Message at the opening of the late session of the Georgia Legislature: 
 
 '•It is also due to our Indian People, that that provision in the law of 1829, should be 
 repealed, which prevents Indians and the descendants of Indians from being competent 
 witnesses in the Courts of the State, in cases where a white man is a party. The pre- 
 sent law exposes them to great oppression, while its repeal would most probably injure no 
 one. Attempts have been made to strip them of their property by forged contracts, because 
 of the impossibility of defending their rights, by the testimony of those who alone can know 
 them. And although the moral feehng of our frontier community has been too correct to 
 permit such infamous proceedings to effect their ends ; yet the character of our legisla- 
 tion for justice requires, that the rights of those People should not be exposed to such 
 danger." 
 
 Such is the character, which Governor Gilmer gives of this law, and of its operation. I 
 have heard some details of the oppressions to which he alludes. I have no reason to doubt 
 their truth j but I will not repeat them to the House, without vouchers to support them. I 
 2 
 
10 
 
 will only add, that this law rejecting the testimony of Indians, remains unrepealed; and tliat 
 their rights and property are still dependent on " the moral feeling of the frontier commu- 
 nity" of Georgia. That frontier community must liave better feelings and principles, than 
 usually actuate a part of every community, if, in the continued operation of this law, the In- 
 dians are not subjected to tlie most grievous oppressions. 
 
 I will mention anotlier law of the new code. Its design may be imperfectly apprehended 
 by me: and if 1 err in tlie motive for which I suppose it was enacted, I hope I shall be ex- 
 cused, on the ground of the great difficulty of picking up here and there — one law, in this 
 newspaper, and another in that — the information, which, as it seems to me, ought to have 
 been spread before us, in ample detail, to enlighten and guide our legislation. The law, to 
 which I allude, subjects all white persons, wlio shall reside within the Cherokee country, 
 without a permit from the Governor of Georgia, or such agent as the Governor shall author- 
 ize, and who shall not have taken an oath of allegiance as a citizen of Georgia, to four years 
 imprisonment at hard labor in the penitentiary. Now, I should be glnd to be informed, 
 where, on her own principles, Georgia gets the right to exact such an oath from all persons 
 resident en her soil, granting the Cherokee country to be her soil. The Constitution of the 
 United States gives Georgia no sucl) right. It is there provided, that " the citizens of each 
 State shall be entitled to all tlie ])rlvllegesand immunities of citizens of the several States." 
 Grant that the country is subject to her laws: what right lias she to tender to the citizens of 
 another State, an oath of allegiance as citizens of Georgia ? If I go to Savannah or Mllledge- 
 ville, and demean myself peaceably, i wish to know, what right, under the Constitution, 
 Georgia possesses to shut me up to hard labor In her penitentiary, If 1 will not take an oath, 
 as a citizen of that State.* I am told that this law is intended to strike at the missionaries. 
 I do not assert the fact, nor ascribe motives to men or bodies of men. If tliis is its design, 
 as it will unquestionably be its efiect, I trust it will be borne in mind, that the missionaries 
 were introduced into the Cherokee natlon_under very respectable auspices. It was during 
 the administration of Mr. Madison, and with the express consent and approbation of Mr. Craw- 
 ford, while this gentleman held the office of Secretary of War. His letter to Mr. Kingsbury, 
 to this effect, is among the documents, formerly communicated to the House. The missiona- 
 ries were then promised the protection, countenance, and co-operation of the Government j 
 and the annual appropriation for civilizing the Indians was recommended to be made^ and has 
 been applied in furtherance of their operations. They are, to say the very least, an inno- 
 cent and a harmless class of men. They expressly disclaim having interfered in the politi- 
 cal relations of the Cherokees with the United States. They have unquestionably been the 
 instruments of great good. If this region, and its ill-fated inhabltints, were swallowed up to- 
 morrow by an earthquake, and sunk from existence, the missionaries would have left monu- 
 ments of their benevolent labors, which will last as long as the history or the memory of this 
 generation lasts; yes, sir, as long as the Earth and the Heavens shall last.+ The law I have 
 quoted is supposed to aim at their exclusion. 
 
 Thus far it is possible, that Georgia (and I again beg leave to say, that I name that 
 State not invidiously) may be thought by some persons not to have gone beyond some ab- 
 stract right of civil jurisdiction, capable of being reconciled with a " possessory right," in 
 which the Indians were promised by the Executive to be protected. But Georgia has not 
 stopped here. In the course of the year 1829, it was found, that this region possessed, and 
 probably in abundance, veins of gold. As soon as this discovery was made, intruders from 
 every quarter, and from all the States in the neighborhood flocked into the gold region and 
 overran the land. The Indians demanded their removal by the Agent. The Agent refer- 
 red the case to the Secretary of War, and the Secretary of War gave the requisite orders 
 for their removal. This took place before the first day of June, 1830. That day the laws 
 of Georgia took effect. And very shortly afterwards I read a Proclamation in the j^upers, 
 proceeding from a gentleman whom 1 most highly respect, the present Governor of Georgia, 
 and which appeared to be of a character so strange and unexpected, that I could scarcely 
 credit my senses as I read it. Let me read a portion of this Prociaraiktiou to the House, 
 which bears date 3d June, 1830. 
 
 " Whereas it has been discovered, that the lands in the territory, now occupied by the 
 Cherokee Indians, within the limits of this State, abound with valuable minerals, and espe- 
 cially gold; and whereas the State of Georgia lius the fee simple title to said lands, and the 
 entire and exclusive property of the gold and silver therein; and whereas numerous persons, 
 citizens of this and other States, together with, the Indian occupants of said Territory, taking 
 advantage of the Law of this State, by which its jurisdiction over said territory was not as- 
 sumed until the first day of June last past, have been engaged in digging for gold in said 
 land, and taking therefrom great amounts in value, thereby appropriating riches to them- 
 selves, which, of right, equally belonged to every other citizen of the State, and in viola- 
 
 • These are Uie termioflhe oath, "I, A. B. ito sol -mnly swear, or affirm as the ease may be, that I will sup- 
 port and deleiid the Cuiistituiion of Georgia, and uprightly demean myseit'as a citizen thereof." 
 
 t Much iutorinatiou relatire to the cliaracteraud opei-atious of the Missionaries among the Indian tribes, may 
 be found m the memorial to Congress of the I'rudential Committee of the Board of Conimissioiier* aX foreigo 
 KXiMious, pre«ented to the House of Kepre6euuii\ c« by Mr. £. on the 14th February. 
 
11 
 
 tlon of the rights of the State, and to the injury of Its public resources," &c. And then the 
 Governor warns "all persons, whether citizens of this or other States, or Indian occupants, 
 to cease all further trespass on the lands of this State, and especially from taking any gold 
 or silver from the lands included within the Territory occupied hy the Cherokee Indians," 
 &c. All further trespass on their own lands, and all further digging for their own gold! 
 
 It is true the Governor, in his Message at the opening of the late Session of the Legisla- 
 ture in Georgia, attempts to justify this strange pretension. " The right thus asserted," 
 says he, '• was supposed to be establislied, by the customary law of all the European na- 
 tions, who made discoveries or formed (Colonies on the Continent; by the fee simple or al- 
 lodial title, which belongs to the Stale, to all lands witliin its limits, not already granted 
 away? and the absence of all right in the fndians, they never having appropriated the mine- 
 ral riches of tlie earth to their own use." Neither had Georgia appropriated these mines 
 by occupation. As soon as the Cherokees knew their existence, they proceeded to take 
 possession of, and to work them, lill tliey were driven away, by the laws of Georgia, and the 
 troops of the United States. What force there can be in the English Common law of fee 
 simple and allodia! title, to control the stipulations of a treaty between the United States and 
 a tribe of Indians, I confess my inabilitj' to imagine. The argument from the customary law 
 oft! .,■ European conquisiadores proves a great deal too much. It would justify the Gover- 
 nor, not only in seizing the gold mines, but in reducing the Indians themselves to bondage, 
 and to labor in tiie mines. The Portuguese did this and so did the Spaniards. The slave 
 trade was projected b)' the benevolent Las Casus, to relieve the Indians from digging their 
 own gold for their conquerors. 
 
 When this subject was under the consideration of the House at the last session, I certainly 
 did not entertain very favorable auguries of tlie treatment, which the Cherokees were likely 
 to receive ; but it never entered into my head, that tiiey were to be denied a right to their 
 own mines. On the contrary, I assumed it as a matter of comse, that they were the law- 
 ful and admitted owners of this mineral wealth. Having, in the course of mv remarks on 
 this subject, had occasion to allude to the intruders into the gold region, before I could 
 finish tlie sentence, in which I made that allusion, a gentleman who voted for the Indian bill 
 interrupted me, with the prompt assurance, that these mtruders were ordered to be remored 
 by the Executive. I was gratified at the information, althougli it was tlien no more (as I 
 thought) than a matter of course. My next information on tlie subject was derived from 
 Governor Gdmer's proclamation, claiming for Georgia tiie absolute property of the gold 
 mines, and warning tlie Indians to desist from digging them. 
 
 Extraordinary as this is, I fear somelliing more extraordinary remains to be told. By the 
 intercourse law, the Executive is authorized to employ the military force of the United 
 States to remove intruders from lands belonging or secured to Indians by treaty. This power 
 has several times been exercised. But the Inchans also possess by treatv, the right of pro- 
 ceeding summarily to redress themselves. Tliey possess the right by the treaty of Holston 
 negotiated in 1791. The Secretary of War in alluding to the right which the Indians thus 
 possess, under the treaty of Holston, speaks of it disparagingly as a treaty forty years old. 
 But it will be recollected, that with all the other treaties it was confirmed by an express ar- 
 ticle in that of 1817. What are the terms in which this right is secured to tlie Indians by the 
 treaty of Holston ? 
 
 " If any citizen of the United States, or other person, not being an Indian, shall settle on 
 any of the Cherokee Lands, such person shall forfeit the protection of the United States, 
 and the Cherokees may punish liim or not as they please." — Treaty of Hulstein, Art. Sth. 
 
 In pursuance of this right, guarantied by treaty, but flowing from that law of Nkture, which 
 is before all treaty, the Indians have exercised this power of protecting themselves fi-om in- 
 truders: nor was it, that I know of, ever questioned by any Administration tdl this. 
 
 It has received the sanction of the present Chief .Magistrate in the amplest terms. 
 
 In a letter to Path Killer and other Cherokee Chiefs, dated Head Quarters, Nashville, 18th 
 Jan. 1821, Gen. Jackson thus expressed himself; 
 
 " Friends and brothers : I have never told a red brother a lie nor deceived him. The in- 
 truders, if they attempt to return, will be sent off. But your light-horse should not let them 
 settle down on your land. You ought to drive the stock away from your lands, and deliver 
 the intruders to the Agent ; but it you cannot keep intruders from your land, report it to the 
 agent, and on his notice, I will drive them from your land. 
 I am your friend and brother, 
 
 ANDREW JACKSON." 
 
 In pursuance of the authority conferred on the tribe, by the treaty of Holston, an autho- 
 rity to the exercise of which they had been exhorted a few years ago, by Gen. Jackson, and 
 of which the validity was, I believe, never questioned before, the Cherokees, in the course 
 of the last year, in consequence of the number and disorderly conduct of the intruders upon 
 their lands, proceeded to remove a ]}ortion of them. This step, whicli they were perfectly 
 warranted to take, occasioned a hostile incursion from Georgia, in the result of which one 
 Indian was killed, and some others wounded and carried prisoners into Georgia. This oc- 
 
currence occasioned the detacliment of a party of United States' troops into the Cherokee 
 countrj', who accordingly came, rather, as it would seem, to protect the intruders from the 
 Cherokees, than the Cherokees from the intruders. Being there, orders were given to the 
 troops to remove intruders from tlie gold region, and these orders were at first complied with, 
 but with partial success ; for as soon as a band of gold diggers were driven from one spot, 
 they settled in another, like iiungry vultures frightened from their prey. They are said to 
 have been a colluvies of all classes and characters ; a lawless and desperate gang. 
 
 And here ensued a scene of a character bordering on comedy, if any thing can be consi- 
 dered burlesque in so grave a matter. I give it as it is related in the memorial of the Chero- 
 kee Indians, on our tables : — 
 
 " In another case, in the name and authority of George R. Gilmer, Governor of Georgia, 
 a bill was filed in chancery, in the Superior Court of Hall Cv^unty, in July last, against certain 
 sundry Cherokees, praying for an injunction to stop them from digging and searciiing for 
 gold within the limits of their own nation j and the bill being sworn to before the same A. 
 S. Clayton, he awarded an injunction against the parties named in the bill as defendants, 
 commanding them, fortliwiih, to desist from working on those mines, under the penalty of 
 20,000 dollars, at a time and place where there were unmolested sereral thousand intruders 
 from Georgia and otlier Slates, engaged in robbing the Nation of gold, for which the owners 
 were ordered not to work by tlie said writ. Under the authority of this injunction, the she- 
 riff of Hall county, with an armed force, invaded the Nation, consisting of a Colonel, a Cap- 
 tain, and thirty or forty militia of the State of Georgia, who arrested a number of Cherokees 
 engaged in digging for gold, who were at first rescued by the troops of the United States sta- 
 tioned near the place, and the slierlff and his party themselves made prisoners, and conduct- 
 ed fifteen miles to the military camp, when a council of examination was held, and the exhi- 
 bition of their respective authorities was made, which resulted in the release of the sheriff and 
 his party, and a written order by the commanding officer of the United States' troops, direct- 
 ing the Cherokees to submit to tlie authority of Georgia, and that no further protection could 
 be extended to the Cherokees at the gold mines, as he could no longer interfere with the 
 laws of Georgia, but would afford aid in carrying them into execution. On the return of the 
 sheriff and his party, they passed by the Cherokees who were still engaged in digging for 
 gold, and ordered tliem to desist, under tlie penalty of being committed to jail, and proceed- 
 edjto destroy their tools and machinery for gleaning gold, and, after committing some further 
 aggression, they returned. Shortly afterwards, the sheriff, with a guard of four men, and a 
 process from the State of Georgia, arrested three Cherokees for disobeying the injunction, 
 while peaceably engaged in their labors, and conducted them to Wadkinsville, a distance of 
 seventy-five miles, before the same A. S. Clayton, who then and tiiere sentenced them to pay 
 a fine of ninety-three dollars, cost, and stand committed to prison until paid, and also com- 
 pelled them to give their bond in the sum of one thousand dollars, for their personal appear- 
 ance before his next Court, to answer the charges of violating the writ of .injunction afore- 
 said. In custody they were retained five days, paid the cost, gave the required bond, and 
 did appear accordingly, as bound by Judge Clayton, who dismissed them on the ground that 
 the Governor of Georgia could not become a prosecutor in the case. For the unwarranta- 
 ble outrage committed on their liberty and persons, no apology was made, and the cost they 
 had paid was not refunded." 
 
 I confess when I first read the account of this incident in the papers last Summer, I suppos- 
 ed it was the wild freak of some inconsiderate subaltern. I did not imagine that it could have 
 taken place by order from the Executive of the United States. The affair is but partially 
 explained in any document I have seen ; but thus much is certain, that orders were sent by 
 the Secretary ot War to the Cherokee Agent and to the officer commanding the troops of 
 the United States, to forbid the Cherokees as well as the intruders from digging the gold 
 mines. On the 26th June, 1830, an order was issued from the War Department at Washing- 
 ton to the officer commanding the United States troops in the Cherokee country, " Direct- 
 ing him, until further orders, to prevent all persons from working the mines, or searching 
 for or carrying away gold or silver, or eitiier metal from the Cherokee Nation." 
 
 This order was communicated by the Agent to Mr Ross, the principal Chief of the Chero- 
 kees, in a letter, dated lOth July, 1830, in which he says: 
 
 " I have also enclosed you a copy of a letter from the War Department, on the subject of 
 the Gold Mines, by which you will see that all persons are ordered to be kept from digging 
 for gold until further order ; and have to request that you will, in such way as you think best, 
 make it known to the Indians, and also that you will advise them to desist for the present, as 
 I am very desirous that no difficulties should take place between the United States' troops 
 and them on the subject." 
 
 And now. Sir, 1 think I may safely appeal to many gentlemen of the House who voted for 
 the Indian bill last winter, whether it entered into their imaginations that under that bill, and 
 with its proviso, the Indians should be prohibited by the armed force of the United States 
 from digging gold within the limits secured to them by numerous treaties. There were 
 gentlemen, I know, who voted for the bill, condemning the policy of which it is a part, but 
 deeming it necessary to save the Indians. Others thought sometliing ought to ba done in 
 
18 
 
 consequence of the compact of 1802. Othors were influenced by some refined notion of a 
 jurisdiction co-extensive with the charter. Did any of them mean or intend, that within less 
 than a twelvemonth — within less than three months — after adopting a proviso that the trea- 
 ties should not be violated, the Cherokees should be driven, by the bayonet of our United 
 States' troops, from gold mines within the boundaries secured to them by treaty and law ? 
 
 The winding up of this affair was in keeping with its commencement and progress. The 
 object of marching the tro»ps into the Cherokee country, according to Major General Ma- 
 comb, *' was to guard against the difficulties which it was apprehended would grow out of 
 the conflicting operations of the Cherokees and the lawless intruders, upon the mineral dis- 
 trict within the State of Georgia. Having fulfilled the instructions of the Government, the 
 troops were directed to return for the winter to their respective quarters." 
 
 On the 29th of October last, Gov. Gilmer wrote to the Secretary of War, requesting the 
 removal of the troops, on the ground that the State of Georgia could enforce her own laws. 
 On the 10th of November, the Secretary answers him, that previously to the receipt of his 
 letter, (two days before) the troops had been ordered out of the Cherokee nation, because 
 the purposes for which they had been sent into it were, in a great measure, accomplished. 
 
 This object, according to the General Commanding in Chief, was to prevent collision be- 
 tween the Cherokees and lawless intruders into the gold district. It was answered, by re- 
 moving both ! 
 
 And here it is obvious to ask, how, on the ground assumed by Georgia and sanctioned by 
 the Executive of the United States, the President could feel himself authorised to employ 
 the armed force of the United States in removing gold diggers, lawless or lawful, Indians or 
 white men, from the gold mines of Georgia, if Georgia's tliey must be ? It is not his duty 
 to enforce the laws of Georgia, nor to protect her property. SWe maintains that she is able 
 to do it herself. Nay, the still broader question presents itself — what T\ght, on the ground 
 atsumedby Georgia and the Executive, have we to go upon the soil of Georgia to remove or 
 bribe away a part of her subjects or citizens ? What right to keep an agent there, or to 
 pay them an annuity ? Am, I answered, it is done in pursuance of treaties? The treaties 
 are declared unconstitutional and void. Sir, it happens now to accord with the interest of 
 Georgia to permit it, but surely she will not bend her principles to her interest .' 
 
 It has been urged against the Colonization Society, on very high authority, that it is un- 
 constitutional for the United States to go into a State to remove a part of its colored popula- 
 tion. In a very able report made to the Senate, I think at the first session of the twentieth 
 Congress, I find the following argument: 
 
 " Uefore they leave this part of the subject, the Committee will observe, that the framers 
 of the Constitution most wisely abstained from bestowing upon the Government thereby 
 created any powers whatever over the colored population, as such, whether this population 
 was bond or free. 
 
 " If the United States possess the right to intrude into any State, for the purpose of with- 
 drawing from thence its free colored population, they undoubtedly must exert practically 
 the power of previously deciding what persons are embraced within this description. They 
 must have the power of determining finally not only who are colored, but who are free per- 
 sons. This committee believe, however, that any attempt, by the United States, to exer- 
 cise such a power would not only be a direct violation of the Constitution, but must be pro- 
 ductive of tfie worst effects." 
 
 Now, sir, it is not necessary to consider how far this argument applies to the operations of 
 the Colonization Society. But on the principle that the Indian country is a part of the soil, 
 and its occupants a portion of the People of the State, I confess I do not see how gentle- 
 men who stand on the ground of State rights and strict construction of the Constitution, can 
 move an inch in this matter. What, sir, constitutional for the General Government to go 
 into the counties of Georgia, into Hall and Habersham, to get the People of those counties 
 together — People subject to the laws of Georgia — make a compact with them to move away 
 in a body — take millions of money out of the Treasury of the United States, to effect this 
 object — to enable the President to go upon the soil of Georgia and buy off her People ! 
 In what part of the Constitution, on the principles which gentlemen set up, is there a word 
 to warrant such a policy, or to justify an appropriation of money to carry it into operation ? 
 
 I know it has been answered, that it is constitutional to fulfil a compact. I must own that 
 this mode of getting at a grant of power is, for statesmen wlio advocate a strict Constitution, 
 liberal enough. Accordmg to this principle,the General Government may enter into a compact 
 to do an unconstitutional thing, and it thereby becomes constitutional. On the ground up- 
 on wkich this new Indian policy rests, the compact of 1802 was itself unconstitutional, and 
 •was so argued to be, in the Senate last winter. If tlie soil and jurisdiction of this territory 
 were already Georgia's, the United States had no right to interfere with it, not even to extin- 
 guish the Indian title on peaceable and reasonable terms. Unless the principles^of the Con- 
 stitution vary with the complexion of those who are the subjects of its provisions, the 
 United States have just as little right to enter into compact to extinguish the title of the 
 red men of one county of Georgia, as that of the white men of another county. The gen- 
 tlemen are actually obliged to come to us for principles, on which they can remove the In- 
 
14 
 
 di&ns. Unless the treaties are taVul, tlie United States have no power to act in this mattw. 
 Gentlemen deny the vahdity of the treaties in order to get at the soil ; and then c«me back 
 to the treaty-making power, to get ihe Indians removed from it. 
 
 The conduct whicli Georgia has pursued, with respect to the gold, forcibly reminds me 
 of the opposite course adopted by Mr. Jefferson, in reference to some iron mines discovered 
 at the mouth of the Cliickamauga, in Tennessee. Tennessee did not claim these mineral 
 treasures ; but the Indians themselves expressed a wish to cede these mines to the United 
 States, for the purpose of having them wrouglit. Mr. Jefferson accordingly negotiated a 
 treaty of cession for six miles square, including these mines; and gave the following reasons to 
 the Senate, as his inducement : " As such an establishment would occasion a considerable 
 and certain demand for corn and other provisions and necessaries, it seemed probable that 
 it would immediately draw around it a close settlement of the Cherokees ; would encourage 
 them to enter on a regular life of agriculture ; familiarize them with the practice and value 
 of the arts ; attach them to property ; lead them of necessity, and without delay, to the es- 
 tablishment of laios and Government, and thus make a great and important advance toward 
 assimilating their condition with ours." 
 
 But the seizure of the gold mines, violent as tliat measure is, beyond any thing that was 
 or could have been apprehended, loses its importance, when contrasted with another act 
 of great, of unexampled, and I must add stupendous injustice. I refer to the law which 
 has passed the Legislature of Georgia, for the survey and disposal of the lands of the Che- 
 rokees. Let it be remembered, then, 
 
 1. That tliere is a boundary, between the Cherokees and the States surrounding them, 
 fixed by numerous treaties and by law. 
 
 2. Let it be remembered, that the treaty of Holston, which was negotiated in 1791, on 
 instructions previously ratified by a unanimous Senate, contains this simple and expressive 
 pledge : " The United States solemnly guaranty to the Cherokee nation all their land not 
 hereby ceded." 
 
 3. That as late as 1817, this as one of the previous treaties, was declared to be " in full 
 force," with all its " immunities and privileges;" and that this confirmation is contained in 
 a treaty, negotiated by the present chief magistrate, and unanimously ratified by the Senate. 
 
 4. And that the Intercourse Act makes it lilghly penal, to survey the lands belonging or 
 secured to any Indian tribe by treaty. 
 
 And now, sir, I hold in my hand a law of Georgia, authorizing the survey of the lands thus 
 solemnly guarantied : their division into districts and sections ,- and their distribution by a land 
 lottery ! 
 
 There is aprovision in this act of Georgia, by which, if the President of the United States 
 should execute his sworn duty, in enforcing the laws of the United States, he would sub- 
 ject himself to imprisonment for five years in the Georgia Penitentiary ; that beiny the pun- 
 ishment denounced by this State law on any person, who shall obstruct the surveys, which 
 it is most assuredly the duty of the President to do. 
 
 The law provides for the survey of the country into sections and districts. The sectional 
 surveyors, twelve in number, are to proceed with as little delay as possible, to the duties as- 
 signed them. The survey of the districts is to be suspended until the next meeting of the 
 General Assembly, and until further enactments, for that purpose. The number of district 
 surveyors is one huudrcd and ninety-six, and the Governor is authorized to call out a military 
 force to protect them in the discharge of their duties. 
 
 The only mitigation of the severity, with which tiiis bill acts on tlie Indians, is the provi- 
 sion contained in the thirty-first section. By this section it is directed, that "the Indians 
 and their descendants, who have made improvements upon the territory, are to be protected 
 in the possession of those improvements and of the lots of land upon which the said im- 
 provements are made, until otherwise directed by the General Assembly, or until they are vo- 
 luntarily abandoned by the Indian occupants. Indians not allowed to sell their right of oc- 
 •upancy to any person, unless it be to the Government of the United States, or ihe govern- 
 ment of Georgia, for the use of the persons drawing such improved lots in the lottery ; and 
 no grant to be issued, until th« Indians shall havejabandoned the lots in their occupancy ; the 
 fortunate drawers of such improveil lots, to forfeit their draws, should they by threats, or 
 menaces, or violence, remove or attempt to remove any Indian, from such improved lot." 
 
 How much this mitigation is worth may be judged of, by considering, that It exists only 
 during the pleasure of the General Assembly, and that tlie evidence of the Indian occupants, 
 and of all those able to support his title, is inadmissible in the Georgia Courts. In this state 
 of things, it littla matters, whether he be expelled at once, or his estate be thrown into a 
 land lottery, to be drav.n as a prize, and a " fortunate drawer" planted at his door, or dog- 
 ging him, wherever he goes, till b« voluntarily abandons his home. 
 
 Especially when we recollect, that, objectionable as this law is, a still more objectionable 
 and oppressive measure was proposed and strenuously advocated, and if I am not misin- 
 formed, adopted, in tke House of Representatives of Georgia. 1 derive my informatioH 
 from a letter, written from Mllledgeville, and published in the Augusta Chronicle. I know 
 nothing of its author, but that, as appears on the face of the letter, he is a friend of the 
 present administration. 
 
15 
 
 Extract of a letter to the Editor of the Augusta Chronicle from a correspondent in Milledgeville, 
 
 dated 27th Nov. 1830. 
 
 "The particular question now and for several days past before the House, is the adoption 
 of Mr. Haj'ne's substitute to the bill reported by Judge Schley, from the Committee on tlie 
 state of the Republic. This contemplates, as you are aware, the taking immediate posses- 
 sion of the Indian lands, and forcibly driving tlie Indians therefrom. How such a bill can be 
 the subject of a moment's consideration in a christian land, is to me the subject of the deep- 
 est astonishment, and yet many intelligent men believe and fear it may be successful. For 
 my own part, I will not believe it possible, and indeed should scarcely credit the evidence 
 of my own senses, if such were the fact. God forbid such a fatal consequence ! and I will 
 confidently rely on his over ruling goodness and protection to avert it, to save the Indians, — 
 nay tenfold more, to save our own State from the serious evils which must inevitably follow 
 it. I must not trust my feelings farther on this point ; they are perhaps too deeply and un- 
 necessarily wounded. We will at least hope so. One thing is certain, that no effort is or 
 will be spared to prevent the adoption of the measure ; and I am proud to see among its 
 opponents many, very many of the first and ablest men of the Assembly of both parties. 
 Indeed it is by no means a party matter, &c. 
 
 " Numerous as are the advocates of this measure, the array of talent against it is very 
 powerful, and the arguments of its opponents are sound and incontrovertible. To say no- 
 thing of humanit)', the want of necessity or expediency ; the ingratitude of opposing the 
 President and his Administration which have long been and still are making every possible 
 effort in our behalf^ the folly of now necessarily arraying them against us, contrary to their 
 will, and of indirectly giving their and our enemy, Mr. Clay, still furtlier and greater power 
 against tliem ; the imminent danger of a direct and violent controversy with the General Go- 
 vernment, all of which are directly opposed to this measure, the faith and honor of the State 
 Stand openly and irrevocably pledged against it. But for this pledge given by our Repre- 
 sentatives, Mr Wilde and others, on the floor of Congress, last session, against the exercise 
 of anj' force against the Indians, any effort to drive them forcibly from their lands, the bill 
 to encourage their emigration to the West of the Mississippi would not and could not have 
 been passed." 
 
 This bill with some amendments passed the House of Keprcsent.itlves of Georgia, 76 to 55. 
 
 I read this to show that it is not merely " the white savages of the North," nor the oppo- 
 nents of this Administration, who condemn the course pursued by Georgia. 
 
 But I do not find that the law passed is essentially better. The evil is only delayed . The 
 lands improved by the Indians are not exempted from the lottery. An amendment to that 
 effect was rejected, by a vote of nearly two to one ; and after the lottery is drawn tlie un- 
 happy occupant is only to keep possession, till " the fortunate drawer" can persuade him 
 logo. 
 
 And now, sir, is there a member of this House, who can recollect, that the United States 
 have solemnly guarantied this land to the Indians ? That we guarantied it for a valuable con- 
 sideration, which we keep ; that we guarantied it voluntarily, unanimously, and before the 
 compact of 1802, and not feel that the guaranty ought to be I'edecmed ; that tiie pledged 
 faith of the country ought not to be violated ? 
 
 I again appeal to gentlemen, who, without approving of the principles of tiiis policy, 
 gave their votes for the bill of last session, qualified as it was by the Proviso, wiiether they 
 would have lent their sanction to the measure, had they believed, that, within a twelve- 
 month, a law would be passed by Georgia, to send an army of surveyors into the territory 
 of the Cherokees, and to subject any person who should presume to execute your laws, to 
 the punishment of the Penitentiary, from the President of the United States down to the 
 lowest officer in the service ' 
 
 Why, sir, granting that all these treaties made by the United States are unconstitutional 
 and not binding ; granting the truly atrocious proposition, that we can break tlie treaty and 
 keep the consideration ; granting that Georgia still possesses the power, which if slie ever 
 had it, by adopting the constitution she gave up to the United States, and that things now 
 stand as they stood under the old confederation, all this would not mend her title to these 
 lands. Under the confederation, she admitted the right of the Cherokees to treat as an in- 
 dependent nation. She treated with them herself ; the treaty of Augusta in 1783 stands 
 in her statute book ; and in that treaty, in words evidently of her own choosing ; words of 
 the English Common law ; she accepts a cession of land from the Cherokees ; and in so do- 
 ing recognizes their right to cede, and to keep what they do not cede. I will read to the 
 House the first and sixth articles of that treaty. 
 
 " Whereas a good understanding and union between the inhabitants of the said State and 
 the Indians aforesaid are reciprocally necessary and convenient, as well on account of a 
 friendly intercourse and trade, as for the purposes of peace and humanity ; it is, therefore, 
 agreed and covenanted — 
 
 " 1st. That all differences between the said parties, heretofore subsisting, shall cease and 
 be forgotten. 
 
16 
 
 6th. And lastly, tliey, the said headmen, warriors, and chiefs, whese hands and seals arc 
 hereunto affixed, do hereby, for themselves and for the nation they are empowered to and 
 do effectually represent, recognize, declare, and acknowledge, that all the lands, woods, 
 waters, game, Ijnng and being in the State, eastward of the line hereinbefore particularly 
 mentioned and described, is, are, and do 'belong, and of right appertain, to the people and 
 government of the State of Georgia ; and they, the Indians aforesaid, as well for themselves 
 as the said nation, do give up, release, alien, relinquish, and for ever quit claim to the sanie> 
 or any part thereof." 
 
 Now, what \roukHiave been thouglU of tiie transaction, if, the day after signing this trea- 
 t)' and accepting this cession, Georgia had laid claim to all the rest of the land ; had passed 
 a law disposing of it ; had gone into the country, (supposing her to have been, wiiat, at that 
 period, slie most assuredly was not, strong enough for that purpose) with an army of survey- 
 ors; and divided it out for distribution by a land lottery ? It would liave been thought an 
 unparalleled bread) of good faith. 
 
 But I will go fartlier tl-an this: Suppose there had been no treaty at all — not even a state 
 of peace — suppose that the armies of Georgia had done, what, at that time, it was wholly 
 impossible for them to do — suppose they had overrun and conquered the land, even then the 
 laws of nations and civilized warfare would not have justified this measure. Why, Sir, as a 
 war measure, and in the hot blood of victory, such a thing has never, in modern times, been 
 heard of, as the forcible seizure of tlie entire domain of a conquered people, and a partition 
 of it into sections, tlie unoccupied part of wiiich are to be immediately taken possession of, 
 and the improved parts thrown into a lottery with the rest. It comes up to the precedent 
 of the Norman Conquest, and goes beyond the partition of Poland. I doubt if a single Pol- 
 ish proprietor has been disturbed in tlie possession of iiis estate, from the date of the first 
 partition to the present day. Suppose tliat Russia, and Austria, and Prussia, in addition to 
 extending their laws over the Poles, had enacted a code, under which it was admitted, that 
 they could not live, had cut up their lands into districts and sections, thrown their estates 
 into a land lottery, granting t') the proprietors no other privilege but that of occupancy, till 
 they could be induced by legal duress and governmental persecution to emigrate to the de- 
 serts of Bucharia ! What language would have furnished adequate terms for the condemna- 
 tion of such a policy ? 
 
 Tlie very ground on which Georgia claims the right to pursue this course is the strongest 
 reason, why she should not pursue it. Sir, she denies that they are an independent or even 
 separate community. Siie says they are her citizens or subjects ; calls them " her peo- 
 ple ;" constitutes them an integral part of her community ; and then passes a lavy to distri- 
 bute tlieir lands by a lottery. Does not this show the injustice of the measure ? Let her 
 pass a law to, dispose by lottery of the property of the people of Chatham and Effing- 
 ham, of Richmond and Columbia ; let her plant a "fortunate drawer" at the door of each 
 man's shop and house, and the gate of his jjlantation, to worry him olf to the foot of the 
 Rocky Mountains. — No, sir, the very process of reasoning, by which Georgia would with- 
 draw the Clierokees from our protection, can serve only to bring them under her own ; and 
 is itself the most incontrovertible of all arguments against this oppressive policy. 
 
 But we live under a Federal Union, designed to bring all the States, to a certain de- 
 gree, under one government, and possessing tribunals of eminent jurisdiction, for the ad- 
 iustment of controversies which are placed by the constitution witliin the province of such 
 tribunals. 
 
 What is the aspect of this aff'air, in reference to this Federal Union, and the authority of 
 its tribunals .' 
 
 Let it then first be borne in mind, that Georgia in 1789 voluntarily became a party to the 
 Constitution, " which is the supreme law of the land, and the judges in every State shall 
 be bound thereby, any thing in the Constitution or laws of any State, to the contrary not- 
 withstanding ;" and that it is also a provision of that Constitution, to which Georgia is a 
 voluntary ])arty, that " the judicial power of the United States shall extend to all cases, 
 in law and equity, arising under the (.onstitution, the laws of the United States, and treaties 
 made, or which shall be made, under their authority." 
 
 Under her new laws, Georgia has proceeded to take the hfe of an Indian.for a murder, alleged 
 to have been committed on another Indian, within the Cherokee boundary. It belongs, in no de- 
 gree, to my argument, to inquire nito tlie guilt of this pei'son. 1 have seen but an imperfect 
 newspa])er report of his trial, in a paper friendly to the policy of Georgia,which 1 mention only 
 as authorizing the presumption, that the report is probably not strained against Georgia. From 
 that report it appears, that Corn Vassel, ^,such is the name of this Indian ; it is also the first In- 
 dian name subscribed to the great Hopewell treaty) was found guilty of murder, chiefly on evi- 
 dence, which would not be admissible a,q;ainst the life of a white man, (1 mean Indian evi- 
 dence,) and on the testimony of a white man, whose evidence is contradicted by the Judge 
 in his charge. Now, wliatever may be said against the admissibility of Indian testimony m 
 cases of property, I am clear that in a case of life and death, as good evidence ought to 
 be required to convict an Indian as a white man. The jury that puts an Indian to death, 
 needs, I think, as clear a warrant of credible evidence against him, as the jury that puts a 
 
I i 
 
 white man to death. The other testimony, to which I have alluded, is that of the officer 
 who arrested Tassel, who testified that at first he talked only in the Indian language, but 
 afterwards spoke English intelligibly. The Judge, who sat in the trial, mentions it as a cir- 
 cumstance to be regretted, that the prisoner at the bar " could not understand him." 
 
 But though I am inclined to think there was not evidence to establish the malice, I waive 
 that point entirely, and do not pretend that Tassel is an object ef sympathy. I go upon the 
 assumption, that he was guilty, though I do not think that proved on the trial as reported. 
 This «« unfortunate " being, (as he is justly called by Judge Clayton,) on his trial before a 
 court and jury, whose language he did not understand, pleaded by his counsel to the juris- 
 <iiction of the court. The ground of this plea appears to have been, that, under the 
 treaties between the United States and the Cherokees, the latter were independent 
 of the laws of Georgia. This plea was reserved for the consideration of all the Judges. 
 They overruled it, mainly on the ground, that these treaties were unconstitutional, and 
 could not bind Georgia. 
 
 Here the momentous bearings of the question begin to appear. Georgia decides, that 
 numerous Indian treaties, negotiated during^ nearly fifty years, sanctioned by every branch 
 of the Federal Government, under every administration, and by Georgia herself, at whose 
 request and for whose benefit many of them were entered into, are all wnconstitutional and 
 void. Whence the Courts of Georgia derived the power to decide on the constitutionality 
 of treaties and laws of the United States, I do not know. Her Constitution does not give it 
 to her ; and if it did, it would be a void grant, for Georgia is a voluntary party to the Fed- 
 eral Constitution made prior to her own. 
 
 The right of deciding in cases arising under the Constitution, laws, and treaties, is one 
 of the rights expressly granted by the People of Georgia to the Federal Judiciary. The 
 allegation, that the Indian Treatias are unconstitutional, is no more than might be made of 
 any other treaties, that of Louisiana for instance, (which was at first supposed by Mr Jeffer- 
 son and Mr Madison to require an amendment of the Constitution, to carry it into effect,) 
 and if the Judges of a State can entertain the question of the constitutionality of the Che- 
 rokee treaties, I see no reason why they cannot do it in the case of any others. 
 
 It will easily be supposed, that the unfortunate being whose life was at stake, would be 
 disposed by his counsel to maintain the validity of these treaties; and he accordingly ap - 
 plies for that wi'it of error, which, under the Judiciary act, issues, as a matter of course, 
 when duly demanded. This was a case arising under the law and the treaties, the validity 
 of which was denied by Georgia, and affirmed on behalf of the Indian. 
 
 The citation issues in the usual form, the form in which it has been respected by the 
 Courts of the most powerful and enlightened States of the Union, who understand and love 
 their rights as well as Georgia. This writ the Legislature of Georgia instructs the Governoi* 
 and all other officers " to disregard, and with it every mandate and process that has been oi!' 
 shall be served upon him or them, purporting to proceed from the Chief Justice or any As- 
 sociate Justice of the Supreme Court of the United States, for the purpose of an'esting the 
 criminal laws of this State." 
 
 In other words, Georgia repeals for herself a considerable portion of the twenty-fifth sec- 
 tion of the Judiciary Act of Congress, and annuls, in all criminal cases, the second section 
 of the third article of the Constitution of the United States. 
 
 Georgia, on the principles she has now asserted, has only to make it penal to do any act 
 or thing under a law of the United States, and she thereby acquires exclusive jurisdiction 
 over the subject, and annuls the law. 
 
 This is a much more compendious process than a convention of the people of a State, else- 
 where proposed. And almost at the moment that this House resolves, by a majority nearly 
 unexampled, that it will not repeal the twenty-fifth section of the Judiciary Act, Georgia re- 
 peals one half of that section, and of the clause of the Constitution on which it is founded. 
 
 Where is this to stop .'' Is it to stop any where ? What laws of the United States have not , 
 been declared unconstitutional ? What laws and treaties will not be acted on, as if they were? 
 unconstitutional, if a process so summary is permitted to obtain ? ^j, 
 
 I will observe, in conclusion, that, till the validity of these treaties has been settled by tha^r 
 tribunal which is alone competent under the Constitution to entertain the question, and se'^g 
 tied in favor of Georgia, Tassel could not be put to death by any lawful warrant. The verj,^ 
 Judge who tried him is made, in the report, to say, that he " belongs to another nation.'^ 
 And, tUl it is settled by the competent authority, that this other nation is subject to the lawt , 
 of Georgia, the death of Tassel remains illegal. At the same time I admit there may be 
 difficulties in the case. The Constitution is clear, but it is not certain that the Judiciary 
 Act gives full force and effect to all the provisions of the Constitution. But although there 
 may be no remedy for the wrong done to the being whose life is taken, (if he has lost that 
 life at a bar to which he was not amenable, ) this want of remedy for the wrong proves no- 
 thing in favor of the right of Georgia. It is greatly to be lamented that she had not imitated 
 th« best part of the New York precedent, and granted a pardon or reprieve to Tassel. As 
 a firsv. case, a case of life and death, of an individual of a different nation and language, ap- 
 pealing iQ the faith of the Union, and asking only to be tried by that tribunal by which (,if 
 
the treaties are Indeed valid) he had a right to be tried, It is greatly to be deplored thsit % 
 little time could not have been granted. 
 
 I will only add that as there was a United States' force in the country when Tassel was ar- 
 rested ; and as Congfress had just enacted in a law which the President signed, that the 
 treaties should not be violated, I think those troops would have been as well employed, in 
 protecting the hfe of a fellow-being, pending his appeal to the Courts of the United States, 
 as in driving the Cherokces from their own mines. 
 
 And here I may suitably consider the plea, that Georgia has done no more in this matter 
 than other States, and particularly New York. No argument is more apt to be fallacious^ 
 than the argument from analogy. There is great danger of mistaking slight and merely cir- 
 cumstantial points of resemblance, for entire parallelism. I will examine this case briefly 
 but (fairly. I will admit the points where it is a precedent in favor of Georgia ; and I will 
 point out those;wh«re it is not ; premising, that if the legislation of Georgia violates law 
 and treaty, it by no means follows that tlie Government of the United States may withhold 
 the protection which it owes, and which is demanded by those who are the victims of that 
 legislation, because New York has adopted similar acts of legislation. 
 
 It is matter of surprise, too, if the legislation of New York affords a sanction to that of Geor- 
 gia, that it was not insisted on sooner. Three great negotiations have been held by citizens 
 of Georgia, since the New York law of 1822, with the Creeks or Cherokees, and this pre- 
 cedent was never pleaded, as far as 1 can find in the record of the negotiations. 
 
 Now let us compare the cases. New York, in 1822, passed a short law extending her 
 erjffu'na/ jurisdiction over the dwindling remnants of tribes within her borders, and there she 
 has stopped. She leaves her Indians as she found them. She makes no attempt, by severe 
 penal enactments to break down the organization of their tribes. She has neither claimed 
 nor surveyed their lands, nor seized their mines. As to the individual condemned by her 
 Courts, Soo-non-gize, her Assembly pardoned him. Her law, I understand, has not since 
 been acted upon ; and it is the opinion of the highest legal authorities in the State, that it 
 leaves the rights and condition of tlie Indians^ where it found them. Hers then are points of 
 great and vital difference. 
 
 The New York law, in its terms confirred to crimes and offences, was evidently intended, in 
 its origin, to arm the State with power to protect the Indians, against the evil of imaginary and 
 superstitious crimes ; a power, as the event shows, designed to be called forth, only when 
 such a peculiar occasion should require it. The Georgia Code is one of civil and criminal 
 jurisdiction, the last of a series of measures, having for its great and avowed object, to effect 
 the removal of the Indians. Hence, while New York stops at the claim of criminal jurisdic- 
 tion, and does not, in point of fact, enforce that ; Georgia enacts the severest laws against the 
 entire social existence of the tribe, claims their lands, seizes their mines, and substantially 
 drives them from her borders. If New York had gone into the Seneca Reser\'ation with a 
 score of surveyors, declaring the alternative of removal to the West, or extinction, and draw- 
 ing a lottery for their lands, the case would have been more nearly parallel. Accordingly 
 we find, in the last plaee, that the Senecas never invoked our protection, because no prac- 
 tical evil was done or threatened; the Cherokees invoke our protection, because the choice 
 is set before them, of subjection to State laws, under which they are told they cannot 
 live, and removal to a desert, where they believe they must die. 
 
 There is, therefore, the greatest difference in all the matters of fact, which give a char- 
 acter to the two cases. In point of equity and justice, the New York precedent could not 
 of course alter the case; as one wrong affords no justification of another. 
 
 I will here also answer the argument drawn from the example of the colonies and of the 
 States, before the Constitution. The argument from the practice of the colonies is of two- 
 fold aspect, looking to the question, as one of humanity and of right. 
 
 First, as to humanity. Grant that the treatment of the Indians, by the colonies, was bar- 
 barous and cruel. We have lately been taunted with the fact, that when taken as prison- 
 rs of war they were sometimes sold as slaves to the West Indies; and our recollection has 
 een refreshed with the circumstance, that, according to Cotton Mather, on occasion of 
 'orming an Indian fort, the huts within it took fire, and several of the wretched inmates 
 ' »re (as this author with detestable quaintness expresses it) " broiled" to death. These 
 ?e the facts quoted against us. They were the incidents of a war of mutual extermina- 
 lon, between the Colonies and a powerful Savage foe. But I let that pass. What is gain- 
 d by citing these facts? Suppose they prove the only thing they seem to prove, that the 
 early settlers of New England were a blood-thirsty race, and treated the Indians barbarous- 
 ly? Is any thing gained for Georgia and her sister States, by proving that fact? Those, 
 who would get an argument to support their policy, out of the fact, that, in the seventeenth 
 century, some Indians were sold to the West Indies as slaves, need not go so far back. The 
 slave trade, till very lately, was carried on throughout the civilized world. All nations were 
 stained with its guilt. The States of New England brought the slaves from Africa; the 
 Southern States bought them into bondage. And what then? Is the traffic less atroci- 
 ous; or is it inconsistent for any one. North or South, at the present day, to denounce «nd 
 reprobate it? 
 
19 
 
 Let me not, however, be thought to admit the charge of barbarity against the early set- 
 tlers of New England, towards the Indians. Some incidents occurred, in the perilous con- 
 tJition in which the colonists, in the early periods of their settlement were placed, which I 
 surely will not vindicate 5 but their conduct towards the Indians in the main was honorable 
 and kind. The charges against them, from whatever quarter, are substantially unjust. 
 They had a right to come to this continent; they were guided hither by the hand of the same 
 Providence, that had planted the Indians before them. There was room for both. Our 
 forefathers had a right to a part of the soil, to be obtained by honest dealing with the na- 
 tives. I have 'never pretended, that the Indian had an exclusive right to all the land he 
 could see from the top of the mountain, ©r ove?-which the deer may fly before him in the 
 chase. But what follows from this admission ? That after we have made an agreement with 
 an Indian tribe, and got all we need, and guarantied the rest, we shall not be bound to the 
 &ith of our compact ' I trust not. 
 
 How then is the question of right affected by the practice of the colonies ? It is said 
 they legislated over the Indians. But this is vague and general. I want something specific 
 and distinct. Did they, after making a long series of treaties with the Indian tribes, fixing 
 boundaries, accepting cessions, and guarantying unceded lands, did they turn round, de- 
 clare those treaties null, break down the boundaries and seize upon the land, in time of pro- 
 found peace, and under the pretence that the treaties were unconstitutional ? This is the 
 kind of precedent wanted; not one resting in mere political metaphysics. 
 
 But grant they did all this, (no part of which they did) and grant they did it, as indepen. 
 dent States, before the Constitution of 1789. All this would not help the argument. The 
 States, under the confederation, were clothed with many attributes of sovereignty, which 
 they gave up on entering the Union. They coined money, enacted navigation laws. Imposed 
 tariffs to protect manufactures. The right to treat with the independent tribes of In- 
 dians was not one of^the rights cf;ded to the States, although conflicts existed between the 
 Congress and some of the States as to the extent of their power in this respect. But all 
 the sovereign powers I have enumerated were given up by the States in adopting the Consti- 
 tution. When Georgia adopted the Constitution, the treaty of Hopewell was in existence^ 
 containing the most decisive guaranties of the rights of the Cherokees. Before the consti- 
 tution, Georgia claimed the right of treating with the Indians ; but afterwards never. She 
 frequently has requested the United States to treat for her benefit, and the United States have 
 done it. And now the argument is, that Georgia has a right to annul all these treaties, because 
 in former times, the colonies pr the States extended their laws over the Indians ! 
 
 But it Is said that the late a(jmlnistration pursued the same policy of removing the Indians, 
 and the friends of that administration are charged with inconsistency in now opposing it. 
 No one denies, that the l^te administration earnestly desired the removal of the Indians. It 
 saw, what every body sees, the inconveniences incident to the residence of the southwestern 
 tribes in the neighborhood of the States, so resolutely bent on acquiring their lands. It is 
 well known that the project of colonizing them west of the Mississippi, was submitted by 
 Mr Monroe to Congress, near the close of his administration, and again with some modifica- 
 tions by Mr Adams in 1828. But it is a matter of equal notoriety, that neither the last ad- 
 ministration, nor that wlilch preceded it, co\itemplated the attainment of this object in any 
 other way, than by the joint and voluntary co-operation of the Indians themselves and the 
 United States. The idea that the States Qould annul the treaties was never countenanced 
 by the bte President for a moment. It cannot surely be forgotten in what emphatic lan- 
 guage, on a very trying occasion, Mr. Adams avowed his resolution to support the Indians ia 
 the rights secured to them by treaty and by law. 
 
 Georgia had passed a law authorizing the survey of a portion of Creek lands, ceded by 
 the treaty of the Indian Springs, which the Senate of the United States had annulled, and 
 not ceded by that of Washington. Mr. Adams immediately oraered the arrest and prosecu- 
 tion of the Surveyors. Georgia declared a determination to support her surveyors by mili- 
 tary force ; and the President submitted the subject to Congress. In the Message sent for 
 that purpose, he used this language : It ought not, however, to be disguised, that the act of 
 the Legislature of Georgia, under the construction given to it by the Governor of that State 
 and the surveys made or attempted by his authority beyond the boundary secured by 
 the treaty of Washington of April last to the Creek Indians, are in direct violation of 
 the supreme law of this land, set forth in a treaty, which has received all the sanctions 
 provided by the Constitution, which we have sworn to support and maintain. In the pre- 
 sent instance, it is my duty to say, that if the legislative and executive authorities of the State 
 of Georgia should persevere in acts of encroachment upon the territories secured by a so- 
 lemn treaty to the Indians, and the laws of the Union remain unaltered, a superadded obliga- 
 tion, even higher than that othuman authority, will compel the Executive of the U. States 
 to enforce the laws and fulfil the duties of the nation, by all the force committed for that pur- 
 pose to his charge." 
 
 I may be permitted to add, that this message and other important documents m the Geor- 
 gia controversy, were committed to a Select Committee ol this House, of which I had the 
 honor to be the Chairman, from which » Report proceeded supporting in all points the pria- 
 
20 
 
 ciples laid down by the President in the Message I have just cited. It is obvioui, therefore, 
 that there is no foundation for the charge that the last administration was friendly to the poli- 
 cy of removing the Indians as now pursued. In fact, it is matter of gurprise, that a charge so 
 notoriously groundless should be adventured. Had Mr. Adams done what is now pretend- 
 ed ; had he countenanced Georgia, Alabama, and Mississippi, in their policy, the South 
 would never have been consolidated, as it was, against him ; and I much doubt if tlie Ciiair 
 of State would have been filled as it now is. 
 
 Sir, I think I have made out my case. I have shown that the Cherokee Indians have been 
 invaded in the territory and rights, secured to them by treaty and by law. In addition to 
 the particulars which I have mentioned, there are others set forth in their memorial, well 
 deser^•ing the consideration of the House. Most of these, for want of tinve, I must pass 
 over ; but on two of them 1 will dwell for a monaent. Georgia has contended for a 
 boundary line, under the treaty of the Indian Springs of 1825, (and in contravention of that 
 of 1826 at Washington, by which the treaty of the Indian Springs was annulled) which 
 ■would take a million of acres of land froni the Cherokees. The ground of this claim on 
 the part of Georgia is, tiiat the ancient boundary between the Creeks and the Clierokees 
 was greatly to the north ot the recent boundary ; and that the Creeks and Cherokees, by 
 compact between themselves, had no right to change it. If this were true, it would not af- 
 fect the case, because the treaty of the Indian Springs, which gave Georgia all the Creek 
 lands, being fraudulent in itself, could never have given any rights, and was solemnly 
 annulled by the Senate, the present Secretary of War voting in Javor of annulling it.. Ne- 
 vertheless, passing by the treaty of Washington, which fixed the boundarj', and acting under 
 that of the Indian Springs, wliich the Senate declared void, the President has undertaken 
 to settle a new boundary, equally to the dissatisfaction of the Clierokees and Georgia; and 
 has actually dispossessed the Cherokees, by a simple executive order, enforcing a treaty de- 
 clared by the Senate to be fraudulent, null, and void, of 464,646 acres of land ; occupied 
 as they allege by their tribe for generations. 
 
 I migiit also speak of the countenance which has been given to intruders, in establishing 
 themselves on lands vacated by the emigrants to Arkansas, by which serious evils and con- 
 stant vexations are occasioned to the Cherokees j but I forbear, for want of tirae^ to dwell 
 on the subject. 
 
 Nor is the order given last Summer, to change the mode in which the annuities are 
 paid, less vexatious. It has been called, and 1 think with justice, a small business. 
 The annuity due to the Cherokees amounts, I believe, to but 6666 dollars. It is by 
 treaty due to the nation. Since the Cherokees took our advice, and estabhshed a 
 regular Government, it has been paid to the Treasurer of the nation. It constitutes 
 a considerable part of the little revenue of the tribe. The President has seen fit to 
 order its payment to the Treasurer to be discontinued, and to l>e made hereafter to the 
 Indians individually, it amounts to about forly-two cents for each of the population. It 
 must of course be paid in specie. A pait of the tribe live a hundred or two miles from the 
 agency. Shall it be sent to them ? Shall they travel this distance to receive their few cents .> 
 What is the object of this change ? 1 have understood that it has been stated by the Sec- 
 retary of War, in a letter published in the course of the last Summer, that complaints had 
 been made, that some of the Indians are defrauded by their chiefs of their share. How- 
 ever this may be with other tribes, to which the same cnange extends, and of this I know 
 nothing, I believe it is not so with tlie Clierokees. I have seen a letter from Mr Montgom- 
 ery, the Cherokee agent, dated last October, in which he declares that no such complaint 
 has ever come to his knowledge. I hppe there is no reason for the suggestion which has 
 been made on very good authority, that this change in the mode of paying the annuities has 
 been ordered, to deprive the Cherokee Government of the funds necessary to enable them 
 to carry on the arduous and discouraging contest in which they are now involved with the 
 Executive authorities of the United States and with Georgia. 
 
 I have confined myself, for the reasons stated in the outset, almost entirely to tlie case of 
 the Cherokees. There is a memorial from the Creeks on our tables, from which it would 
 appear, that they suffer from the same policy. They are overrun with intrnders, whom the 
 Government of the United States does not remove ; and the legislation of Alabama has 
 been eitend«d over them. I find the following account of it in a letter, apparently 
 by a member of the Legislature of Alabama t " Tuscaloosa, (Al.) 9th January. The Indian 
 bill, which has been passed in the House of Representatives, provides for extending over the 
 different tribes v.lthin the territorial limits, the civil and criminal laws of the State, prohibit- 
 ing them from enacting or executing any laws of their own— taxes their black population 
 between the ages of twelve and sixty, with a poll tax of fifty cents. The Choctaw and 
 Chickasaw nations are, however, to be exempt from the operations of this act, so soon as 
 the treaty concluded by their respective nations with the United States shall have been ra- 
 tified by the Senate. This was a favorite amendment of mine, and it was all I could do to 
 soften, in this very small degree, the rigor of the law." * 
 
 • Since tliia Speech was delivered, I have understood that bills have been intruduced in botli brancbea of the 
 Legislature of Alabama, to leptal Ui« law exttuding the jnrisdiciion of the State over the Indian* ; with what 
 •B«cna X an uniufunne<u 
 
21 
 
 with the Chickasaws and Choctaws, treaties have been concluded under the law of last 
 session, and, as I will demonstrate, in direct violation of its provisions. 
 
 Let me revert a moment to the history of the proviso contained in that law. The Pre- 
 sident's message took the ground, that the Indians could not be protected against the le- 
 gislation of the States. The reports of the Committees on Indian Affairs, in the two 
 Houses, took the same ground. The bill did not directly grapple with that point ; but 
 on both sides of the House, that was the point argued ; and the great objection to the bill 
 was, that it played into the hands of that policy. The House, as the event proved, was 
 nearly in equilibrio .• the bill passed by a vote of 102 to 97. In this state of division in the 
 House, the gentleman from Penssylvania (Mr. Eamsat,) moved an amendment, which pre- 
 Tailed. It provided " that nothing in this act contained should be construed, as authori- 
 zing or directing the violation of any treaty between the United States and any Indian 
 tribe." Without this proviso, I am persuaded the bill could not have passed. 
 
 By this clause, the House solemnly provided that the treaties were constitutional, and 
 could Hot be violated ; and if, as it would seem, the President thinks them unconstitution- 
 al, I do not understand how he could sign the bill. He thought proper, by a special mes- 
 sage, to guard the House against even construing a law passed at the last session, in a sense 
 deemed by him unconstitutional ; and, in appending his signature to it, it would appear that 
 he has endorsed, upon the official roll of the, law a sort of quahfying reference to that message; 
 an entirely novel, singular, and, as I think, unconstitutional step. In this case, he signs a 
 bill, in which the constitutionahty of the treaties is expressly recognized, although he 
 deems them all null and inoperative. 
 
 With this act in bis hand, and the half million in his pocket, the Secretary goes down 
 to the Chickasaws and Choctaws, tfells them that the President will not protect them from 
 the legislation of the States, and "under these circumstances," negotiates the new treaties. 
 These treaties have not been submitted, (not being as yet ratified,) to the House of Repre- 
 sentatives. From the best sources of infoimation to which I have had access, I have been 
 led to the opinion, that the tone of the Secretary's communications with the Choctaws, was 
 of the most urgent and imperative character. 
 
 No one denies that the extension of State laws over the tribes is, of itself, a violation of 
 all the treaties } but in the case of the Choctaws, there were peculiar provisions in their 
 treaties, which are contravened and broken. By the treaty 6t Doak's Stand, negotiated with 
 that tribe, in 1820 by the present Chief Magistrate and the worthy gentleman (.Gen. Hinds) 
 who now represents the State of Mississippi, it was in the fourth article, stipulated as follows : 
 
 "The boundaries hereby established between the Choctaw Indians and the United States 
 on this side of the Mississippi river, shall remain without alteration, until the period at which 
 said nation shall become so civilized and enlightened as to be made citizens of the United 
 States, and Congress shall lay off a limited parcel of land for the benefit of each family and 
 individual in the nation." 
 
 Some uneasiness on the part of the Choctaw nation appeare to have been produced by 
 this stipulation; and it was accordingly, in the treaty with the "Choctaws, negotiated at Wash- 
 ington in 1825, farther provided, " that the fourth article of the treaty aforesaid shall be so 
 modified, as that the Congress of the United States shall not exercise the power of appor- 
 tioning the land, for the benefit of each family or individual of the Choctaw nation, and of 
 bringing them under the laws of the United States, but with the content of the Choctaw na- 
 tion .'" 
 
 So unequivocal was the condition of the Choctaws, under these treaties, that the State of 
 Mississippi decided, in 1826, tliat they had not a right to legislate for their own citizens, 
 wandering into the Choctaw nation, fugitives from the justice of the State. 
 
 In the face of these treaties, in the face of the proviso of the law, under which he was 
 acting, refusing expressly to authorize their violation, the Secretary goes to the Choctaws, 
 tells them in substance that the old treaties will be regarded by the Executive of the United 
 States as unconstitutional, and knowing that their consent to remove depends upon this one 
 fad and no other, he assures them the President will not enforce tiie treaties, and under 
 these circumstances induces a portion of them, (how large a portion I know not,) to cede 
 the lands of the nation. To effect this object, there is great reason to believe that very 
 large temptations were offered to the individuals possessing influence in the tribe. 
 
 Now I say the law of the last session was conditional ; and the appropriation contained in 
 it was conditionally made. 
 
 The condition was that the Treaties should not be violated. 
 
 It is known to every gentleman in the House, that the sole consideration, which induced 
 the Choctaws to agree to remove, was the assurance of the Secretary, that the Government 
 of the United States would not protect them from the violation of the treaties. 
 
 It is unnecessary to press this matter much farther. I have stated most of the grounds, 
 on which I rest the propriety and expediency of adopting my motion. 
 
 It is admitted by the States, that they consider these treaties as unconstitutioHal, and act 
 accordingly. 
 
22 
 
 The President acquiesces in thig course on the part of the States, although it is his sole 
 duty in reference to this matter to enforce the law, of which these treaties are a part: 
 
 Congress last winter made express provision against their violation. 
 
 They are violated. Let us then either make provision to execute, or let us abrogate 
 them avowedly. 
 
 It is due to consistency, g^od faith, and common honesty. 
 
 The President has, with his annual message, sent us a letter from the Superintendent 
 of the Bureau of Indian Affairs, in which that officer states, that the law of 1802, "is the 
 principal one which governs all our relations with the Indian Tribes," and recommends its 
 revisal and modification to suit the changes produced by subsequent treaties and other cau- 
 ses. The same message is accompanied by the letter from the Secretary of War, to which 
 I have already referred ; telling us that the provisions of thkt law are unconstitutional, and 
 the President neglects to enforce them in favor of those tribes, ov^r which the States have 
 extended their laws. 
 
 Let us then, the Congress of the United States, if we think this law is constitutional, make 
 provision to execute it ; if we think it is defective, let us amend it. If we think it is uncon- 
 stitutional, let us repeal it. That law, by which all our Indian relations are regulated, ought 
 not surely to remain in its present state. 
 
 If the treaties are constitutional, let us enforce them. If they are unconstitutional, let us 
 abrogate them ; let us repeal the proviso of the last Session j declare them null and void; 
 and make what compensation we can to the deluded beings, who, relying upon our faith, 
 have, at different periods, ceded to us mighty and fertile regions, as a consideration for the 
 guaranty contained in these compacts. 
 
 Sir, this is a dreadful affair. Heaven is my witness, that I would rather palliate than mag- 
 nify its character ; but I can think of nothing so nearly parallel to it, as the conduct of the 
 Britisli Government towards the native inhabitants of St. Vincents. This is a precedent 
 from one of the worst periods of the British Government ; that of the Administration which 
 drove America into revolution. It was a transaction on a small scale, in an obscure Island, 
 and toward a handful of men. But it lefl an indelible stigma on those responsible for it ; a 
 stigma on an administration, which nothing moderately unjust could disgrace ; a stigma, 
 which would have been as notorious as it was indelible, but for the overshadowing enormity 
 of the treatment of America, which succeeded. If we proceed in this path, if we now bring 
 this stain on our annals, if we suffer this cold and dark eclipse to come over the bright sun 
 of our national honor, I see not how it can ever pass off; it will be as eternal as it is total. 
 
 Sir, I will not believe that Georg-a will persevere. She will not, for this poor corner, 
 scarcely visible on the map of her broad and fertile domains, permit a reproach to be cast 
 upon her and the whole Union, to the end of time. 
 
 As for the character of the country to which it is proposed to remove the Indians, I want 
 only light. It was all we asked last session ; all I ask now. I quoted then all the authori- 
 ties, favorable as well as unfavorable, with which 1 was acquainted. The friends of the po- 
 licy refused us the only means of getting authentic information on the subject — a commission 
 of respectable citizens pf the United States sent out for the purpose. Since the subject was 
 discussed last session, two more witnesses, not then heard, have spoken; Dr. James, who 
 was appointed to accompany Col. X^ong on his tour of exploration in this region, has thus 
 expressed himself: 
 
 " The region to which Mr McCoy proposes to remove the Indians,would, such is its naked 
 and inhospitable character, soon reduce civilized men who should be confined to it, to 
 barbarism." 
 
 In 1827, before this question was controverted, a report was made by the commissioners 
 appointed to lay out a road from the western boundary of Missouri to Santa Fe in New 
 Mexico. These commissioners report, that, in the whole line of their march, extending 
 seven hundred miles, if all the wood which they passed were collected into one forest, it 
 would not exceed a belt of trees three miles- in width ! 
 
 But a|I this does not change the question. It merely suggests the possibility of an altema- 
 tive of evil. If all the land were as fertile, as some small part of it probably is ; if it were 
 as safe from the wild tribes of the desert, as it is notoriously exposed ; if wood and water 
 were as abundant as they are confessedly scarce ; if it were the paradise, which it is not ; so 
 much the worse for the Indians, the miserable victims whom we are going to delude into it. 
 The idea that they cin there be safe, is perfectly chimerical ; and every argument to show 
 that the land is good, is an argument of demonstration that they will soon be driven from it. 
 If all these treaties cannot save them, nothing can. What pledges can we give stronger 
 than we have given ? ' . 
 
 It is partly for this reason that I urge the Heuse to settle the question ; and the more plain- 
 ly we meet it, if we settle it against the Indians, the more humane will be our conduct. If 
 we intend to be faithless to all these compacts, let our want of faith be made as signal and 
 manifest as it can be. 
 
 Here, at the centre of the Nation, beneath the portals of the Capitol, let us solemnly 
 auspicate the new era of violated promises and tarnished faith. Let us kindle a grand coun« 
 
28 
 
 cU-fire, not of treaties made and ratified, but of treaties annulled and broken. Let us send 
 to our archives for the worthless parchments, and burn thera in the face of day. There 
 will be some yearnings of humanity, as we perform the solemn act. They were negotiated 
 for valuable considerations ; we keep the consideration and break the bond. One gave 
 peace to our afflicted frontier ; another protected our infant settlements. Many were made 
 when we were weak ; nearly all at our earnest request. Many of them were negotiated 
 under the instructions of Washington, of Adams, and of Jefferson — the Fathers of our liber- 
 ty. They are gone, and will not witness the spectacle ; but our present Giiief Magistrate, 
 as he lays them, one by one, on the fire, will see his own name subscribed to a goodly 
 number of them. 
 
 Sir, they ought to be destroyed, as a warning to the Indians to make no more compacts 
 with us. The President tells us that the Choctaw treaty is probably the kst which we shall 
 make with them. This is well ; though, if they remain on our soil, I do not see how future: 
 treaties are to be avoided. But I trust it is the last we shall make with them ; that they 
 will place themselves beyond the reach of our treaties and our laws ; of oui^ promises, and, 
 our mode of keeping them. 
 
 There is one sad alleviation of the fate of some of these tribes. When the possessions of 
 the rural population of Italy were parcelled out among the Roman legions, by a policy too 
 similar to that wlilch we are now pursuing towards the Indians, it was the pathetic inquiry ' 
 of a poor shepherd, who was driven from his native soil, his cultivated farm, and the roof of 
 his infancy, 
 
 Impiua hec um culta noralia milei bab«bit, 
 Barbarui has testes f En quels conievimus agroi ! 
 
 It will be some sad alleviation of the fate of these dependent allies, whom we are urging 
 into the western wilderness, that their lands and their houses, their fields and their pastures, 
 their civilized, improved, and Christian homes, will pass into the possession of their civilized 
 and Christian brethren ; who, I doubt not, will do their best to mitigate the bitterness of 
 the cup. At sorne future day, should they escape the destruction which as I think impends 
 over them beyond the Mississippi, some of their children will perhaps be moved by the de- 
 sire to undertake a pious pilgrimage to the seats from which their fathers were removed. 
 The children of the exile will not, I know, be turned unkindly from the door of the child of 
 the "fortunate drawer." Here, they will say, are the roofs beneath which our parents were 
 bom, and for which our white brethren cast lots ; here are the sods beneath which the ashes 
 of our forefathers are laid ; and there are the ruins of the Council House where the faith of 
 our Great Father was solemnly pledged to protect us ! 
 
 Sir, it is for this Congress to say, whether such is the futurity we will entail on these de- 
 pendent tribes. If they must go, let it not be to any spot within the United States. They 
 are not safe : they cannot bind us, they cannot trust us. We shall solemnly promise, but we 
 shall break our word. We shall sign and seal, but we shall not perform. Let them go to 
 Texas ; let them join the Camanches ; for their sakes and for ours ; for theirs to escape the 
 disasters of another removal ; for ours, that we may be spared its shame. 
 
 Now, Sir, I have done my duty. I have intended nothing offensive to any man or body of 
 nien. 1 have aimed only to speak the truth, honestly and earnestly, but not opprobriously. 
 If, in the heat of the moment, I have uttered any thing which goes beyond this limit, I wish 
 it unsaid. 
 
 I am not without hopes that Congress will yet throw its broad shield over these, our fel- 
 low beings, who look to us for protection : being perfectly satisfied that, if the question 
 could be presented free from all extraneous considerations to the decision of the House, it 
 would be for the preservation of the treaties. 
 
 But however this may be, I am confident that the time is not far distant when the people 
 will be all but unanimous in this matter. I believe that even now, could it be freed from 
 all delusive coloring, and submitted to the mighty company in the Union, of sober, unpre- 
 .judiced, disinterested men, their voice would reach us, like a rushing storm from Heaven. 
 Rather than have this Hall made the theatre of such a disastrous violation of the National 
 Faith, they would speak to us in a tone which would shake these massy columns to their 
 base, and pile this canopy in heaps on our heads. 
 
I 
 
 OlflV. OF CAIIP. LIBRABY. LOS AJIGELES 
 
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