Cherokee Phoenix and Indians' Advocate
Vol III No. 16
Saturday, August 14, 1830
Pg. 4 Col. 1b-3b
For the New York Observer
HISTORY OF THE INDIAN BILL.-No. II
It ought to be stated, that special efforts were made, several weeks before the debate on the Indian bill commenced, to get friends of the administration to pledge themselves to its support, as a party measure. A member of Congress, also is chairman of one of the most important committees, said to a gentleman of undoubted character, "Sir, we have succeeded in making the Indian subject a party measure. There may be some chicken-hearted fellows at the North who will not stand by the party; but we shall carry the measure in both houses; and, in the lower house, by a majority of perhaps seventeen or twenty."
Though this prophecy did not prove circumstantially correct, it is absolute proof of what was to be expected, and of the means which were employed. What should we think of a juryman, who should predict that a plaintiff would lose his farm, because the jury were resolved to decide the suit, not on the merits of the title proved in court, but solely with a view to t e effect of the decision upon a certain political party? But the present case is incomparably stronger. Here are 75,000 souls in 15,000 families, whose farms, property, residence, attachments, country, government, laws, habits, customs, everything earthly, were to be torn from them, or confirmed to them, by the decision of Congress. The same decision would ultimately touch the interests of two or three hundred thousand other human beings, descendants of the original possessors of this continent. The decision could be properly made only by a regard to what is right and just in itself, and to the engagements, by which the United States had bound themselves in the most solemn manner. The subject was not a new one. The government had acted upon it in hundreds of instances. The current of precedents had been perfectly uniform. All our great men, how much soever they differed on other points, had thought alike upon this. The reputation of the country abroad, and with posterity, was thought to be deeply implicated. Yet all these considerations are disregarded. The whole matter is to be settled by the simple fact: "We have succeeded in making it a party question." Who could have imagined, that a member of the American Congress, a man of some influence, and who supposes himself to have a great deal, would descend to the avowal of such baseness? And how deplorable is the fact, if the declaration which he made was substantially true.
The friends of the Indians did in all their power to prevent the question of Indian rights being made a party question. There was no possible inducement to make it one. They regretted extremely that the administration had expressed any opinion upon it, and had not left it for the unbiased decision of Congress. That, in the actual circumstances of the case, there should be some party influence, seemed inevitable; but that a direct attempt should be made to set aside all the precedents of fifty years, and withdraw the guaranty solemnly given to dependent tribes; that all this should be attempted, without any regard to law or conscience, treaty, or honesty, ought not to have been to expected. It should have been morally impossible.
It seems desirable, that the discussion of this subject should commence in the House of Representatives. The friends of the Indians desired it; and probably many on the other side desired it also. Mr. Bell, chairman of the committee on Indian affairs, made repeated efforts to take it up; but without success. A bill to protect the revenue, which opened a long debate on the tariff question, was taken up first; and the Indian subject was crowded to the last weeks of the session.
On the 6th of April, Mr. White, one of the Senators from Tennessee, and chairman of the Committee on Indian Affairs, rose in support of the bill, which he had reported six weeks before. His speech occupied two hours and a half. His manner was cool and dispassionate; his language temperate, and he exhibited a general appearance of great candor. He is neither an eloquent nor a powerful speaker. Yet he is generally quite intelligible, and would leave upon most assemblies the impression, that he is a man of extraordinary honesty.
There was nothing in his speech so far it partook of the nature of an argument, which was not perfectly familiar to those who have examined the subject. The scope of his observation was as follows. Great Britain gave portions of this continent to colonists by charter. She did not consider the Indians as having any right to their soil, which Great Britain had before. This right belonged to the states separately and not to the general government. The Treaty of Hopewell, made between the United States and the Cherokees, in 1785, was an encroachment upon the rights of the States of Georgia and North Carolina. They protested against it. The Constitution is a compact, by which the United States guaranty to each state all the territory within the chartered limits. This guaranty to each state is anterior to any guaranty to the southern Indians, and is inconsistent with it.
He urged, also that the Treaty of Holston, which contains a guaranty of the Cherokee territory, transcended the power of the general government. A treaty is a compact between sovereign states; between communities foreign to each other. But the Indians are not foreigners. They were justly amenable to the laws of the several states so far as the states should see fit to make laws for them.
The present bill makes provision for the removal of the Indians. It will facilitate their removal, though it will not constrain them to remove. Some of the Cherokees are capable of making good citizens of any State of the Union. But the majority cannot live under the laws of a civilized people. They cannot remain with the whites; and the provisions of the bill are intended for their benefit.
Though Mr. White gave a very dark account of the present condition of the Cherokees generally, yet he said there were among them (and perhaps some within the hearing of his voice, men whom he considered capable, both as it respects intelligence and integrity, of representing a state on the floor of either house of Congress; and whom he should be willing, if they were citizens of Tennessee, to see either house as representing and his fellow citizens.
He admitted that it was the policy and the manifest intention of the federal government, from 1791 to 1791 (sic) to 1819, to secure the Cherokees the permanent possession of their country; that this was the obvious meaning of all the treaties; and that they mere made wholly upon this basis. The design was, that the Cherokees should become a civilized people, first herdsmen, then agriculturists. But these engagements were incompatible with previous engagements to Georgia. The general government must therefore do the best that can be done: which is, to give the Cherokees an equivalent for that country, which we cannot secure to them. He could easily conceive how honest men, both in and out of Congress should differ on this subject; for he had himself been formerly of a very different opinion from the one which he now expressed. It was a consideration of the rights of sovereign states, that wrought this change in his mind.
It must not be understood, that, in giving the positions and statements of the speakers without comment. I admit that they were just or even plausible. Most of the statements of facts, made by the advocates of the bill were erroneous in all the material points, and their positions and arguments were altogether untenable. Mr. White admitted, that he had lately changed his opinion. It should be known, therefore, that in the year 1824, he was applied to, in behalf of the Cherokee Nation, for professional advice. He gave a deliberate and written opinion, which has been published in one of the documents of Congress. He considered the Cherokee Nation as being sovereign in every respect, except so far as its sovereignty had been restricted by treaties with the United States. These treaties he considered as fully binding. Indeed their validity had not hen been questioned by a single human being. Georgia did not begin to question it till three years afterwards. This deliberate opinion of Mr. White, which completely defended all the rights now claimed by Cherokees, and which he established by the most conclusive reasoning, he was himself totally unable to refute in the speech here described. He did not even venture to attempt a formal refutation. The mere reading of his opinion would have left an impression, which neither he, nor those who voted with him, could have ever effaced.
The statements of Mr. White, in regard to the present condition of the Cherokees, had the more weight, on account of his living in their vicinity; that is, within fifty or sixty miles of their present nearest limits. Yet, he said, he had not been within their limits for a number of years--I think it was thirteen. Mr. Worcester's letter, written in the heart of Cherokee country only three weeks before this speech was delivered, by a man of unquestionable character, whose employment made it his duty to become acquainted with the real state of the Cherokees, and who had personally seen them in almost every part of their territory; such a letter was thought, by the advocated of the bill worthy of very little consideration.
When Mr. White concluded the usual hour of adjournment had nearly arrived. Mr. Frelinghuysen arose and expressed a wish to offer his thoughts on the subject. As he was unwell he moved that the Senate adjourn.
During this debate, the Senate met at eleven. About two hours were usually occupied in the ordinary business of receiving reports, reading bills, &c. &c. Then two or three hours were spent on the Indian Bill, which was regarded as the principal matter before the Senate.
The next day, Wednesday, April 8th, and on the two following days, Mr. Frelinghuysen delivered his sentiments, in opposition to the bill, occupying, in the whole about six hours. He was heard with profound attention by the Senate, & especially by those members who were preparing to take part in the debate.
He moved an amendment to the bill, embraced in two provisions, to the following effect; that till the Indians should choose to remove, they should be protected against all encroachments; and, that their rights, in regard to any new country, which they should consent to receive, should be secured to them by treaty as heretofore.
He began by expressing his sincere regret, that the President had not followed the example of General Washington, who in any case of difficulty or delicacy with respect to our public relations was accustomed to consult the Senate as his constitutional advisors. There was a memorable case of this kind, early in his administration, which related to this very tribe- the Cherokees. But in the case now before the Senate, the question has been decided by the President to a summary manner, and as if to forestall public opinion, and to reader deliberation useless on the part of Congress.
Against such an assumption of executive prerogative, Mr. Frelinghuysen firmly protested.
He then proceeded to examine certain directions given by the Secretary of War to Generals Carrol and Coffee, in reference to the manner of treaties with the Cherokees, which embraced and sanctioned the two means of terror and bribery.
Entering upon the main discussion, he asserted the original right of the Indians to their own country, and utterly denied the right of white men to drive Indians from their lands, as a consequence of discovery. He showed that this right of the Indians was plainly acknowledged by the British Crown, especially by the royal proclamation of 1763. The doings of the revolutionary Congress were all upon the basis, that the Indians were distinct nations; that they could make war or peace; that they could remain neutral in that they were to remain in unmolested possession of their lands.
The United States, under the confederation, and under the present constitution, have hitherto- proceeded upon the same principles which principles were thoroughly established and reduced to a system under the administration of Washington. The treaties all stand upon the same foundation. The guaranty of the Treaty of Holston is perfectly explicit. The opinion of Mr. Jefferson, when Secretary of State, and when President, is in perfect agreement with all our preceding history.
Georgia herself, when a colony, afterwards as a separate state, and since joining the Union, has acted upon the same principles. So late as 1825, her governor issued his proclamation, asserting the binding force of treaties with Indians, as the supreme law of the land.
Alabama and Mississippi are bound by their own constitutional provisions not to encroach upon the Indians.
As to the present condition of the Indians, Mr. Frelinghuysen read extracts from messages of Mr. Jefferson, Mr. Madison, and Mr. Monroe, all testifying to the fact that certain tribes of Indians were in a course of improvement. He then adverted to the decisive testimonials printed among the documents of the Senate, as to the present improved condition of these tribes.-The outrageous laws of Georgia were examined, and their probable effects described.
At the close, Mr. Frelinghuysen pressed the inquiry: how shall we justify this trespass to our consciences, and to the world? this disregard of solemn treaties? this violation of fundamental rights? this trampling upon the weak & the defenseless?
The whole speech was enlivened with passages of genuine eloquence. Spectators in the back seats, and in the gallery, were delighted with the feeling manner in which the claims of the weak and injured were supported. Among the spectators were members of the Cherokee delegation, who attended with most intense interest.
In the more solemn parts of the discussion, the countenance of the Georgia Senators gave plain indications, that they felt the urgency of the case. When the proclamation of Governor Troup was under examination and was shown to contain all the principles for which the Cherokees now contend, though no intimation was given that he was a member of the Senate, he evidently turned pale. On all other occasions, he preserved a remarkable sameness of countenance.
In my next number, this account of the debate in the Senate will be continued.