Of Mr. Frelinghuysen of New Jersey, in Senate U. S. - April 6, 1830.
The Bill to provide for an exchange of lands with the Indians residing in any of the States or Territories, and for their removal West of the river Mississippi, being under consideration, Mr. Frelinghuysen spoke as follows:-
Mr. President: I propose an amendment to this bill, by the addition of two sections in the form of provisos. The first of which brings to our consideration the nature of our public duties, in relation to the Indian Nations; and the second provides for the continuance of our future negotiations, by the mode of treaties, as in our past intercourse with them. The following is the amendment:
Provided always, That, until the said tribes or nations shall choose to remove, as by this act is contemplated, they shall be protected in their present possessions, and in the enjoyment of all their rights of territory and government, as heretofore exercised and enjoyed, from all interruptions and encroachments.
And provided always, That before any removal shall take place of any of the said tribes or nations, and before any exchange or exchanges of land be made as aforesaid, that the rights of any such tribes or nations in the premises shall be stipulated for, secured and guarantied by treaty or treaties as heretofore made."
The first of these sections discloses the real object sought by this bill, seemingly composed of harmless clauses. It supposes that the design of the system of which the present bill forms but a part, is really to remove all the Indian tribes beyond the Mississippi, or in case of their refusal, to subject them to State sovereignty and legislation.- The Hon. Senator, (Mr. White) who yesterday addressed the Senate, found it necessary so to consider it; and to anticipate and endeavor to meet all such objections to this course of policy, as he deemed worthy of a refutation.
Sir, I prefer that this latent object should be fully before us, that we and the nation may look at it and freely scrutinize it. At an early stage of the present Administration, its views and opinions on the interesting subject of our Indian relations, were developed in language not to be mistaken. It is greatly to be regretted, Sir, that our present Chief Magistrate did not pursue the wise and prudent policy of his exalted predecessor, President Washington, who, at a time of collision and difficulty with these tribes came before the Senate, and laid open to them, in propositions for their approbation, in various important subjects involved in our relations. The annexed extract from the Journals of the Senate illustrates the principles of Washington's Administration. It follows:
"SATURDAY, August 22, 1789.
"The President of the United States came into the Senate, attended by General Knox, and laid before the Senate the following state of facts, with the questions thereto annexed, for their advice and consent."
This was a most important document. It developed all the collisions that existed between the Indian tribes and the States; and referred to the consideration of the Senate certain leading principles of policy which he thought it was wise to pursue.
The principles are embodied in seven distinct interrogatories. The 4th of which submits to the Senate "whether the United States shall solemnly guarantee to the Creeks their remaining territory, and maintain the same, if necessary, by a line of Military Posts." This question was wholly answered in the affirmative by that body, and the blank (for an appropriation of necessary funds) was ordered to be filled at the discretion of the President of the United States. Again, on the 11th of August, 1790 President Washington sent a special message to the Senate by his Secretary, the subject matter of which he introduces by the following suggestion:
"Gentlemen of the Senate:
"Although the treaty of the Creeks may be regarded as the main foundation of the future peace and prosperity of the Southwestern frontier of the United States, yet, in order fully to effect so desirable an object, the treaties which have been entered into with the other tribes in that quarter must be faithfully performed on our part."
He then proceeds to remind the Senate, that, by the treaty with the Cherokees, in November, 1783, (the Treaty of Hopewell,) "the said Cherokees placed themselves under the protection of the United States, and had a boundary assigned them; that the white people settled on the frontiers had openly violated the said boundary by intruding on the Indian lands; that the United States in Congress Assembled, on the first day of September, 1788, had, by their proclamation, forbidden all such unwarrantable intrusions, & enjoined the intruders to depart without loss of time; but that there were still refractory intruders remaining. The President then distinctly announces his determination to exert the powers entrusted to him by the Constitution, in order to carry into faithful execution the Treaty of Hopewell, unless a new boundary should be arranged with the Cherokees embracing the intrusive settlements, and compensating the Cherokees in the cessions they shall make on the occasion. And in view of the whole case, he requests the advice of the Senate, whether overtures shall b e made to the Cherokees to arrange such new boundary, and concludes his communication with the following emphatical question: "3d. Shall the United States stipulate solemnly to guarantee the new boundary which may be arranged?"
It produced as pointed a response- for the Senate
"Resolved, In case a new or other boundary than that stipulated by the Treaty of Hopewell, shall be concluded with the Cherokee Indians, that the Senate do advise and consent solemnly to guarantee the same." A new boundary was arranged by a second treaty; the solemn guarantee was given to the Cherokees; and cogent, indeed, should be the causes that now lead us to think or speak lightly of such sacred obligations.
I lament, Sir, that so bright & illustrious a precedent was not regarded, and that the President had not yielded to the safe guidance of such high examples; and I deplore it the more because it was concerning these very tribes, in the State of Georgia, that General Washington chose to confer with his constitutional advisers.
Instead of this just proceeding, the present Administration have thought proper, without the slightest consultation with either House of Congress-without any opportunity for counsel or concert, discussion or deliberation, on the part of these coordinate branches of Government, to despatch the whole subject in a tone and style of decisive construction of our obligations and of Indian rights. It would really seem, Sir, as if opinion was to be forestalled, and the door of inquiry shut forever upon these grave questions, so deeply implicating our national faith and honor.
We must firmly protest against this Executive disposition of these high interests. No one branch of the Government can rescind, modify or explain away our public treaties. They are the supreme law of the land, so declared to be by the Constitution. They bind the President and all other departments, rulers, and people. And when their provisions shall be controverted--when their breach or fulfillment become subjects of investigation-here, Sir, and in the other Hall of our Legislation, are such momentous concerns to be debated and considered. That we may freely exercise these essential powers, and review the proclaimed opinions of the Executive, I have submitted the first branch of the amendment. We possess the constitutional right to inquire wherefore it was that, when some of these tribes appealed to the Executive for protection, according to the terms of our treaties with them, they received the answer that the Government of the United States could not interpose to arrest or prevent the legislation of the States over them. Sir, this was a harsh measure, indeed, to faithful allies, that had so long reposed in confidence on a nation's faith. They had in the darkest hour of trial turned to the aegis which the most solemn pledges had provided for them, and were comforted by the conviction that it would continue to shed upon them a pure and untarnished beam of light and hope. Deep, indeed, must have been their despondency, when their political father assured them that their confidence would be presumptuous, and dissuaded them from all expectation of relief.
Mr. President: The instructions that have proceeded from the War Department to the Agents of Indian Affairs have excited just and strong jealousies of the measures that are now recommended. They have prompted this amendment in the hope that by some public and decided expression of our disapprobation, a train of political management with these tribes may be arrested, and our country saved from the dishonor of burning over the consent of corrupted Chiefs, to a traitorous surrender of their country.
I will read a part of these instructions; they are from the War Department to Generals Carroll and Coffee, of the date of 30th May, 1829: "The past (remarks the Secretary, in respect to Indian Councils,) has demonstrated their utter aversion to this mode, whilst it has been made equally clear, that another mode promises greater success. In regard to the first, ( that by councils,) the Indians have seen in the past, that it has been by the result of councils that the extent of their country has been from time to time diminished. They all comprehend this.- Hence it is that those who are interested in keeping them where they are alarm their fears, and by previous cautioning induce them to reject all offers looking to this object. There is no doubt, however, but the mass of the people would be glad to emigrate; and there is a little doubt that they are kept from this exercise of their choice by their chiefs and other interested and influential men," &c. Again: "Nothing is more certain than that if the chiefs and influential men could be brought into the measure, the rest would implicitly follow. It becomes therefore, a matter of necessity, if the General Government would benefit these people, that it move upon them in the line of their own prejudices, and, by the acception of any proper means, break the power that is warring with their best interests. The question is, how can this be best done? Not, it is believed, for the reason suggested by means of a general council.- There, they would be awakened to all the intimations which those who are opposed to their exchange of country might throw out; and the consequence would be- what it has been-firm refusal to acquiesce. The best resort is believed to be that which is embraced in an appeal to the chiefs and influential men, not together, but apart, at their own houses, and by a proper exposition of their real condition, rouse them to think of that; whilst offers to them of extensive reservations in fee simple, and other rewards, would, it is hoped result in obtaining their acquiescence."
Let us analyze this singular state paper. It does not relish the congregation of Indian councils. In these assemblies, they deliberate and weigh the policy of measures-they calculate the results of proposed improvements. These councils embody the collected wisdom of the tribes. Their influence is of the authority of law; the people look to them for protection. They know that in the multitude of counsellors there is safety. Hence nations, far in advance of the Indians, always meet in council, when their great interests are to be promoted or defended. But these special agents are discouraged from hoping that the object can be obtained in this good old fashioned way. The Indians are too wise (to be caught when the net is spread so fully in sight. They are directed to avoid all associations; and with the public purse in hand, to take the chiefs alone-to approach individually, and at home--"to meet them in the way of their prejudices." I admire the ingenious clothing of a most odious proposal.
A strong hint is suggested to try the effect of terror, and, by a proper exposition of their real condition, rouse them to think upon that, and to follow this up with "large offers to them of extensive reservations in fee simple, and other rewards." The report made by one of these agents of the War Department, dated September 2d, 1829, still further discloses the nature of the exigencies to which the Indians are to be subjected, to constrain their removal. The agent observes, "The truth is, they (the Cherokees) rely with great confidence on a favorable report on the petitions they have before Congress. If that is rejected, and the laws of the State are enforced, you will have no difficulty in obtaining an exchange of lands with them." It may be true, that as we withdraw our protection, give them over to the high handed, heart-breaking legislation of the States, and drive them to despair, that when improper means fail to win them, force and terror may compel them. We shall have no difficulty, the agent assures the War Department. Sir, there will be one difficulty that should be deemed insurmountable. Such a process will disgrace us in the estimation of the whole civilized world. It will degrade us in our own eyes, and blot the page of our history with indelible dishonor.
Now, Sir, I have brought this measure before the Senate, and wait with intense anxiety to hear the final disposition of it. Where is the man that can, in view of such policy, open the door, or afford the slightest facility to the operation of influences that we should blush with honest shame could we, in an unguarded moment, consent to have employed them with our equal in the scale of civilization. It is not intended, Sir, to ascribe this policy exclusively to the present Administration. Far from it. The truth is, we have long been gradually, and almost unconsciously, declining into these devious ways, and we shall inflict lasting injury upon our good name, unless we speedily abandon them.
I now proceed to the discussion of those principles which, in my humble judgment, fully and clearly sustain the claims of the Indians to all their political and civil rights, as by them asserted.
And here, Mr. President, I insist that, by immemorial possession, as the original tenants of the soil, they hold a title beyond and superior to the British crown and her colonies, and to all adverse pretensions of our confederation and subsequent Union:- God, in his Providence, planted these tribes on this Western continent, so far as we know, before Great Britain herself had a political existence. I believe, Sir, it is not now seriously denied that the Indians are men, endowed with kindred faculties and powers with ourselves; that they have a place in human sympathy, and are justly entitled to a share in the common bounties of a benignant Providence. And, with this conceded, I ask in what code of the law of nations, or by what process of abstract deduction, their rights have been extinguished?
Where is the decree or ordinance that has stripped these early and first lords of the soil? Sir, no record of such measure can be found. And I might triumphantly rest the hopes of these feeble fragments of once great nations upon this impregnable foundation. However mere human policy, or the law of power, or the tyrant's plea of expediency, may have found it convenient at any or in all times to recede from the unchangeable principles of eternal justice, no argument can shake the political maxim- that where the Indian always has been, he enjoys an absolute right still to be, in the free exercise of his own modes of thought, government and conduct.
Mr. President: In the light of natural law, can a reason for a distinction exist in the mode of enjoying that which is my own? If I use it for hunting may another take it because he needs it for agriculture? I am aware that some writers have, by a system of artificial reasoning, endeavored to justify, or rather, excuse the encroachments made upon Indian territory; and they denominate these abstractions the law of nations, and, in this ready way, the question is despatched. Sir, as we trace the sources of this law, we find its authority to depend either upon the conventions or common consent of nations. And when, permit me to inquire, were the Indian tribes ever consulted on the establishment of such a law? Whoever represented them or their interests in any Congress of nations, to confer upon the public rules of intercourse, and the proper foundations of dominion and property? The plain matter of fact is, that all these partial doctrines have resulted from the selfish plans and pursuits of more enlightened nations; and it is not matter for any great wonder, that they should so largely partake of a mercenary and exclusive spirit towards the claims of the Indians.
It is however admitted, Sir, that when the increase of population and the wants of mankind demand the cultivation of the earth, a duty is thereby devolved upon the proprietors of large and uncultivated regions, of devoting them to such useful purposes. But such appropriations are to be obtained by fair contract, and for reason able compensation. It is, in such a case, the duty of the proprietor to sell-we may properly address his reason to induce him; but we cannot rightfully compel the cession of his lands, or take them by violence if his consent be withheld. It is with great satisfaction, that I am enabled upon the best authority to affirm, that this duty has been largely and generously met and fulfilled on the part of the aboriginal proprietors of this continent. Several years ago, official reports to Congress stated the amount of Indian grants to the United States to exceed 214 millions of acres. Yes, Sir, we have acquired, and now own, more land as the fruits of the bounty, than we shall dispose of at the present rate to actual settlers in two hundred years. For, very recently, it has been ascertained on this floor, that our public sales average not more than about one million of acres annually. It greatly aggravates the wrong that is now mediated against these tribes to survey the rich and ample districts of their territories that either force or persuasion have incorporated into our public domains. As the tide of our population has rolled on, we have added purchase to purchase- the confiding Indian listened to our professions of friendship--we called him brother, and he believed us-millions after millions, he has yielded to our importunity, until we have acquired more than can be cultivated in centuries--and yet we crave more. We have crowded the tribes upon a few miserable acres on our Southern frontier--it is all that is left to them of their once boundless forests, and still, like the horseleech, our insatiated cupidity cries give, give.
Before I proceed to deduce collateral confirmations of this original title, from all our political intercourse and conventions with the Indian tribes, I beg leave to pause a moment, and view the case as it lies beyond the treaties made with them; and aside also, from all conflicting claims between the confederation and colonies, and the Congress of the States. Our ancestors found these people, far removed from the commotions of Europe, exercising all the rights, and enjoying the privileges of free and independent sovereigns of this new world. They were not a wild and lawless horde of banditti; but lived under the restraints of Government, patriarchal in its influence.--They had chiefs, head men and councils. The white men, the authors of all their wrongs approached them as friends--they extended the olive branch, and being then a feeble colony, and at the mercy of the native tenants of the soil, by presents and professions, propitiated their good will. The Indian yielded a slow, but substantial confidence-granted to the colonies an abiding place, and suffered them to grow up to a man's estate beside him. He never raised the claim of elder title--as the white man's wants increased, he opened the hand of his bounty wider and wider. By and by, conditions are changed. His people melt away; his lands are constantly coveted; millions after millions are ceded. The Indian bears it all meekly; he complains, indeed, as well he may; but suffers on; and now he finds that this neighbor, whom his kindness had nourished, has spread an adverse title ever the last remains of his patrimony, barely adequate to his wants, and turns upon him, and says: "away, we cannot endure you so near us. These forests and rivers, these groves of you fathers, these firesides and hunting grounds, are ours by the right of power, and the force of numbers." Sir, let every treaty be blotted from our records, and in the judgment of natural and unchangeable truth and justice, I ask who is the injured, and who is the aggressor? Let conscience answer, and, I fear not the result. Sir, let those who please, denounce the public feeling on this subject, as the morbid excitement of a false humanity; but I return with the inquiry, whether I have not presented the case truly, with no feature of it overcharged or distorted And, in view of it, who can help feeling, Sir?--Do the obligations of justice change with the color of the skins? Is it one of the prerogatives of the white man, that he may disregard the dictates of moral principles, when an Indian shall be concerned? No, Mr. President. In that severe and impartial scrutiny which futurity will cast over this subject, the righteous award will be, that those very causes which are now pleaded for the relaxed enforcement of the rules of equity, urged upon us not only a rigid execution of the highest justice, to the very letter, but claimed at our hands a generous and magnanimous policy.
Standing here, then, on this unshaken basis, how is it possible that even a shadow of claim to soil or jurisdiction can be derived, by forming a collateral issue between the State of Georgia & the General Government? Her complaint is made against the United States, for encroachments on her sovereignty. Sir, the Cherokees are no parties to this issue; they have not part in this controversy. They hold by better title than either Georgia or the Union.---They have nothing to do with State sovereignty, or United States sovereignty. They are above and beyond both. True, Sir, they have made treaties with both, not to acquire title or jurisdiction; these they had before--ages, before the evil hour, to them, when their white brothers fled to them for an asylum. They treated, to secure protection and guaranty f or subsisting powers and privileges; and so far as these conventions raise obligations, they are willing to meet, and always have met, and faithfully performed them, and now expect from the great People, the like fidelity and plighted covenants.
I have thus endeavored to bring this question to the control of first principles. I forget all that we have promised, and all that Georgia has repeated conceded, and by her conduct confirmed. Sir, in this abstract presentation of the case, stripped of every collateral circumstance, and these only, the more firmly establish the Indian claims, thus regarded; if the contending parties were to exchange positions; place the white man where the Indian stands; load him with all these wrongs, and what path would his outraged feelings strike out for his career? Twenty shillings tax, I think it was, imposed upon the immortal Hampden, roused into activity the slumbering fires of liberty in the old world, from which she dates a glorious epoch whose healthful influence still cherishes freedom. A few pence of duty on tea, that invaded no fireside, excited no fears, disturbed no substantial interest whatever, awakened in the American colonies a firm resistance; and how was the tea tax met Sir? Just as it should be. There was lurking beneath this trifling imposition of duty, a covert assumption of authority, that led directly to oppressive exactions. "No taxation without representation" became our motto. We would neither pay the tax nor drink the tea. Our fathers buckled on their armor, and from the water's edge, repelled the encroachments of a misguided cabinet. We successfully and triumphantly contended for the very rights and privileges that our Indian neighbors now deplore us to protect and preserve to them. Sir, this thought invests the subject under debate with most singular and momentous interest. We, whom God has exalted to the very summits of prosperity--whose brief career forms the brightest page in history; the wonder and praise of the world; Freedom's hope and her consolation. We, about to turn traitors to our principles and our fame-about to become the oppressors of the feeble, and to cast away our birth-right! Mr. President, I hope for better things.
It is a subject full of grateful satisfaction, Mr. President, that, in our public intercourse with the Indians, ever since the first colonies of white men found an abode on these western shores, we have distinctly recognized their title; treated with them as the owners, and in all our acquisitions of territory applied ourselves to these ancient proprietors, by purchase and cession alone, to obtain the right of soil. Sir, I challenge the record of any other different pretension. When or where did the assembly or convention meet which proclaimed, or even suggested to these tribes, that the right of discovery contained a superior efficacy over all prior titles.
And our recognition was not confined to the soil merely. We regarded them
as nations--far behind us indeed in civilization, but still we respected their
forms of government--we conformed our conduct to their notions of civil policy.
We were aware of the potency of any edict that sprang from the deliberations
of the council fire; and when we desired lands, or peace, or alliances to this
source of power and energy, to this great lever of Indian government we addressed
our proposals-to this alone did we look, and from this alone did we expect aid
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