Thursday April 8
Mr. FRELINHUYSEN pursued his argument a little more than two hours. Mr. F. began by saying that the Senator from Tennessee founds all his arguments on the basis that the Indians have been all along a part of the inhabitants of Georgia and might at amy time have been made subject to her laws. This basis is necessary to support the claims of Georgia; but it has no support in law or reason. Georgia herself has always, till recently, considered the Indians as independent nations. Thus they have been treated by her Governors and other high functionaries.
Mr. F. read extracts from a report of the Old Congress in 1787, by which it appeared that Congress then considered the intercourse with the Indians to be a national concern, which was to be managed by the General Government, and not by the several States.- He next read extracts from a proclamation of Congress in 1788 issued for the defence of these very Cherokees against intruders. He regretted exceedingly that the President of the United States had not a year ago issued a similar proclamation, and showed a fixed determination to enforce it.
The President, in his message, referred to the case of the Indians in the State of New York. A more happy illustration for the defence of the right of the Cherokees could not have been chosen. The Indians of New York are not citizens of that State, not subjects under its Government; except that a single statute has been passed for the punishment of crimes.The highest legal tribunal in that State, the Chancellor Kent at its head, decided, with but one dissenting vote in a court of thirty members, that the Indians in the State of New York are independent communities, and are not subject to the laws of that State.
Mr. F. commented on the word guaranty, and asserted that it did not create a right, but secured an existing right. In regard to the Indians, a guaranty secures to them not only their territory, but their customs, their council fires, and their freedom.
We have heard, said Mr. F., of moral treason, during this session. After a
review of the treaties which have been made with the Cherokees,& of the
guaranty which has been given them, let the Senate consider whether the presenting
of a temptation to the Indians to remove, whether a solicitation even, is not
the violation of a moral obligation. It is not moral treason; but it is a moral
delinquency, a moral obliquity, of which a man would be ashamed in the transaction
of his private business.
Georgia was a party to all these treaties. She cannot now violate them. No impartial man, no enlightened conscience, can justify the violation of them.
The intercourse law, which was enacted by Congress soon after the origin of our Federal Government, places the Indians entirely without the circle of State legislation.
But Georgia herself has made treaties with the Cherokees, as an independent people. A treaty was concluded with these Indians at Augusta, in 1773 the very title and introduction of which should forever preclude Georgia from denying that they are a separate people. There was another treaty in 1783, and another still in 1785. There was a treaty also made at De Witt's corner in 1777, between South Carolina and Georgia on the one part, and the Indians on the other; a treaty formed with as much formality as any between European nations.- The parties all sent commissioners with their full powers which were formerly exchanged,and the negotiation began.
So late as 1825, the Governor of Geo. issued a proclamation, in which he declared the treaties with the Indians to be the supreme law & enjoined upon the citizens a strict observance of them, on penalty of a rigid enforcement of the laws of the United States in such cases provided. We do not ask for anything more for the Cherokees than is fairly implied in the proclamation of the Governor of Georgia, issued five years ago.
The States of Mississippi and Alabama are not only equally bound with the other States of the Union, not to encroach upon the Indians but they are under some peculiar obligations.-They were admitted into the Union under the express and solemn engagement not to invade the rights of the Indians, nor encroach upon their lands.
The famous ordinance of 1787 is made applicable to these States, in all its parts, except the article which relates to slavery. One of the paragraphs of this ordinance secures to the Indians all their rights, their property, and their liberty. It would have become Alabama, before she invaded the rights of the Indians, to have considered well this fundamental article of the compact, by which she was admitted into the Union.
Mr. F. proceeded to examine the recent law of Georgia; and declared that, in point of principle, and as the matter will appear in the solemn revision of posterity, the dismemberment of Poland will be pronounced a pure transaction in the comparison.- The law he denominated an outrageous usurpation, and, if carried into effect, it will rouse a tone of indignation from one end of this country to the other.
After commencing on examination of the supposed humanity of the measure of removal, he gave way to a motion to adjourn.
The Senate then adjourned.