A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

ON OUR RELATIONS WITH THE CHEROKEE INDIANS.

IN THE SENATE OF THE UNITED STATES, FEBRUARY 4, 1835.

[THE situation of the Indian tribes within the boundaries of the state of Georgia was long a subject of controversy between that state and the United States; it having been contended that the general government were bound, by former contracts with the state, to extinguish the Indian title to the lands occupied by them, and to provide for their removal therefrom, which lands were then to belong to the state. In May, 1830, a bill, providing for the removal of the Cherokees from the limits of Georgia to territories of the United States west of the Mississippi river, was passed by congress; but such was the reluctance of these Indians to remove, that, during a period of five years thereafter, only about one fourth of their number had emigrated. The sufferings of those who remained, from the wrongs perpetrated upon them by the whites, excited a deep sympathy in their behalf among the people of the United States. The Cherokees frequently sent memorials to congress, asking for relief; in presenting one of which, Mr. Clay made the following remarks, in which will be found much valuable information on an interesting subject. His opinions and sentiments will accord with those of every philanthropist.]

MR. CLAY held in his hands, and begged leave to present to the senate, certain resolutions and a memorial, to the senate and house of representatives of the United States, of a council met at Running Waters, consisting of a portion of the Cherokee Indians. The Cherokees have a country—if indeed it can be any longer called their country—which is comprised within the limits of Georgia, Alabama, Tennessee, and North Carolina. They have a population which is variously estimated, but which, according to the best information which I possess, amounts to about fifteen thousand souls. Of this population a portion, believed to be much the greater part, amounting, as is estimated, to between nine and ten thousand souls, reside within the limits of the state of Georgia. The senate was well aware that for several years past it had been the policy of the general government to transfer the Indians to the west of the Mississippi river, and that a portion of the Cherokees have already availed themselves of this policy of the government, and emigrated beyond the Mississippi. Of those who remain, a portion—a respectable but also an inconsiderable portion—are desirous to emigrate to the west, and a much larger portion desire to remain on their lands, and lay their bones where rest those of their ancestors. The papers which I now present emanate from the minor portion of the Cherokees; from those who are in favorof emigration. They present a case which appeals strongly to the sympathies of congress. They say that it is impossible for them to continue to live under laws which they do not understand, passed by authority in which they have no share, promulgated in language of which nothing is known to the greater portion of them, and establishing rules for their government entirely unadapted to their nature, education, and habits. They say that destruction is hanging over them if they remain; that, their right of self-government being destroyed, though they are sensible of all the privations, hardships, and sufferings of banishment from their native homes, they prefer exile, with liberty, to residence in their homes, with slavery. They implore, therefore, the intervention of the general government, to provide for their removal west of the Mississippi, and to establish guarantees, never hereafter to be violated, of the possession of the lands to be acquired by them west of the Mississippi, and of the perpetual right of self-government. This was the object of the resolutions and petition which he was about to offer to the senate.

But I have thought that this occasion was one which called upon me to express the opinions and sentiments which I hold in relation to this entire subject, as respects not only the emigrating Indians, but those also who are desirous to remain at home; in short, to express, in concise terms, my views of the relations between the Indian tribes and the people of the United States, the rights of both parties, and the duties of this government in regard to them.

The rights of the Indians were to be ascertained in the first place, by the solemn stipulations of numerous treaties made with them by the United States. It was not his purpose to call the attention of the senate to all the treaties which had been made with Indian tribes bearing on this particular topic; but he felt constrained to ask the attention of the senate to some portions of those treaties which have been made with the Cherokees, and to the memorable treaty of Greenville, which had terminated the war that previously thereto for many years raged between the United States and the north-western Indian tribes. He found, upon consulting the collection of Indian treaties in his hand, that within the last half century, fourteen different treaties had been concluded with the Cherokees, the first of which bore date in the year 1775, and some one or more of which had been concluded under every administration of the general government, from the beginning of it to the present time, except the present administration, and that which immediately preceded it. The treaty of Hopewell, the first in the series, was concluded in 1775, in the third article of which ‘the said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever.’ The fifth article of the same treaty provides, that ‘if any citizen of the United States, or other person, not being an Indian, shall attemptto settle on any of the lands westward or southward of the said boundary, which are hereby allotted to the Indians for their hunting-grounds, or, having already settled, and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him or not, as they please; provided, nevertheless, that this article shall not extend to the people settled between the fork of French Broad and Holston rivers,’ and so forth.

The next treaty in the series, which was concluded after the establishment of the government of the United States, under the auspices of the father of his country, was in the year 1791, on the bank of the Holston, and contains the following provision. ‘Article 7. The United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded.’ This, Mr. Clay said, was not an ordinary assurance of protection, and so forth, but a solemn guarantee of the rights of the Cherokees to the land in question. The next treaty to which he would call the attention of the senate was concluded in 1794, also under the auspices of general Washington, and declares as follows. ‘The undersigned, Henry Knox, secretary for the department of war, being authorized thereto by the president of the United States, in behalf of the said United States, and the undersigned chiefs and warriors, in their own names, and in behalf of the whole Cherokee nation, are desirous of reëstablishing peace and friendship between the said parties in a permanent manner, do hereby declare, that the said treaty of Holston is, to all intents and purposes, in full force, and binding upon the said parties, as well in respect to the boundaries therein mentioned as in all other respects whatever.’ This treaty, it is seen, renews the solemn guarantee contained in the preceding treaty, and declares it to be binding and obligatory upon the parties in all respects whatever. Again, in another treaty, concluded in 1798, under the second chief magistrate of the United States, we find the following stipulations. ‘Article 2. The treaties subsisting between the present contracting parties are acknowledged to be of full and operating force; together with the construction and usage under their respective articles, and so to continue.’ ‘Article 3. The limits and boundaries of the Cherokee nation, as stipulated and marked by the existing treaties between the parties, shall be and remain the same, where not altered by the present treaty.’

There were other provisions, in other treaties, to which, if he did not intend to take up as little time as possible of the senate, he might advantageously call their attention. He would, however, pass on to one of the last treaties with the Cherokees, which was concluded in the year 1817. That treaty recognised the difference existing between the two portions of the Cherokees, one of which was desirous to remain at home and prosecute the good work of civilization, in which they had made some progress, and the otherportion was desirous to go beyond the Mississippi. In that treaty, the fifth article, after several other stipulations, concludes as follows. ‘And it is further stipulated, that the treaties heretofore between the Cherokee nation and the United States are to continue in full force with both parts of the nation, and both parts thereof entitled to all the privileges and immunities which the old nation enjoyed under the aforesaid treaties; the United States reserving the right of establishing factories, a military post, and roads, within the boundaries above defined.’ And to this treaty, thus emphatically renewing the recognition of the rights of the Indians, is signed the name, as one of the commissioners of the United States who negotiated it, of the present chief magistrate of the United States.

These were the stipulations in treaties with the Cherokee nation, to which, Mr. Clay said, he thought proper to call the attention of the senate. He would now turn to the treaty of Greenville, concluded about forty years ago, recognising some general principles applicable to this subject. Mr. Clay then quoted the fifth article of that treaty, as follows. ‘To prevent any misunderstanding about the Indian lands relinquished by the United States in the fourth article, it is now explicitly declared, that the meaning of that relinquishment is this: the Indian tribes who have a right to those lands are quietly to enjoy them, hunting, planting, and dwelling thereon so long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same. And the said Indian tribes again acknowledge themselves to be under the protection of the said United States, and no other power whatever.’

Such, sir, are the rights of the Indian tribes. And what are those rights? They are, that the Indians shall live under their own customs and laws; that they shall live upon their own lands, hunting, planting, and dwelling thereon so long as they please, without interruption or molestation of any sort from the white people of the United States, acknowledging themselves under the protection of the United States, and of no other power whatever; that when they no longer wish to keep the lands, they shall sell them only to the United States, whose government thus secures to itself the preemptive right of purchase in them. These rights, so secured by successive treaties and guarantees, have also been recognised on several occasions, by the highest judicial tribunals. Mr. Clay here quoted, from an opinion of the supreme court, a passage, declaring that the Indians are acknowledged to have an unquestionable and heretofore unquestioned right to their land, until it shall be extinguished by voluntary cession to this government.

But it is not at home alone that the rights of the Indians within the limits of the United States have been recognised. Not only has the executive, the congress of the United States, and the supreme court, recognised these rights, but in one of the most important epochs of this government, and on one of the most solemn occasions in our intercourse with foreign powers, these rights of the Indian tribes have been acknowledged. You, sir, (addressing the president of the senate,) will understand me at once to refer to the negotiation between the government of Great Britain and that of the United States, which had for its object the termination of the late war between the two countries. Sir, it must be within your recollection, and that of every member of the senate, that the hinge upon which that negotiation turned, the ground upon which it was for a long time apprehended that the conference between the commissioners would terminate in a rupture of the negotiation between the two countries, was, the claim brought forward, on that memorable occasion, by Great Britain, in behalf of the Indians within the limits of the United States. It will be recollected that she advanced, as a principle from which she would not recede, as a sine qua non, again and again, during the progress of the negotiation, that the Indians, as her allies, should be included in the treaty of peace which the negotiators were about forming; that they should have a permanent boundary assigned them, and that neither Great Britain nor the United States should be at liberty to purchase their lands.

Such were the pretensions urged on that occasion, which the commissioners of the United States had felt it to be their imperative duty to resist. To establish as the boundary the line of the treaty of Greenville, as proposed, which would have excluded from the benefit of American laws and privileges a population of not less than a hundred thousand of the inhabitants of Ohio, American citizens, entitled to the protection of the government, was a proposition which the American negotiators could not for a moment entertain; they would not even refer it to their government, though assured that it would there meet with the same unanimous rejection that it did from them. But it became a matter of some importance that a satisfactory assurance should be given to Great Britain, that the war, which we were about to bring to a conclusion with her, should close also with her allies; and what was that assurance? Mr. Clay said he would not trouble the senate with tracing the whole account of that negotiation, but he begged leave to call their attention to one of the passages of it. You will find on examining the history of the negotiation, that the demand brought forward by the British government through their minister, on this occasion, was the subject of several argumentative papers. Towards the close of this correspondence, reviewing the course pursued towards the aborigines by the several European powerswhich had planted colonies in America, comparing it with that of the United States, and contrasting the lenity, kindness, and forbearance of the United States, with the rigor and severity of other powers, the American negotiators expressed themselves as follows.

‘From the rigor of this system, however, as practiced by Great Britain, and all the other European powers in America, the humane and liberal policy of the United States has voluntarily relaxed. A celebrated writer on the law of nations, to whose authority British jurists have taken particular satisfaction in appealing, after stating, in the most explicit manner, the legitimacy of colonial settlements in America, to the exclusion of all rights of uncivilized Indian tribes, has taken occasion to praise the first settlers of New England, and of the founder of Pennsylvania, in having purchased of the Indians the lands they resolved to cultivate, notwithstanding their being furnished with a charter from their sovereign. It is this example which the United States, since they became by their independence the sovereigns of the territory, have adopted and organized into a political system. Under that system the Indians residing in the United States are so far independent, that they live under their own customs, and not under the laws of the United States; that their rights upon the lands where they inhabit or hunt are secured to them by boundaries defined in amicable treaties between the United States and themselves; and that whenever those boundaries are varied, it is also by amicable and voluntary treaties, by which they receive from the United States ample compensation for every right they have to the lands ceded by them,’ and so forth.

The correspondence was further continued; and, finally, the commissioners on the part of Great Britain proposed an article to which the American commissioners assented, the basis of which is, a declaration of what is the state of the law between the Indian tribes and the people of the United States. They then proposed a further article, which declared that the United States should endeavor to restore peace to the Indians who had acted on the side of Great Britain, together with all the rights, possessions, privileges, and immunities which they possessed prior to the year 1811, that is, antecedently to the war between England and the United States; in consideration that Great Britain would terminate the war, so far as respected the Indians who had been allies of the United States, and restore to them all the rights, privileges, possessions, and immunities which these also had enjoyed previously to the same period. Mr. President, I here state my solemn belief, that if the American commissioners had not declared the laws between the Indians and the people of this country, and the rights of the Indians, to be such as they are stated to be in the extracts I have read to the senate; if they had then stated that any one state of this union who happened to have Indians residing within its limits, possessed the right of extending over them the laws of such state, and of taking theirlands, when and how it pleased, that the effect would have been a prolongation of the war. I again declare my most solemn belief that Great Britain, who assented with great reluctance to this mutual stipulation with respect to the Indians, never would have done it at all, but under a conviction of the correspondence of those principles of Indian international law, (if I may use such a phrase,) with those which the United States government had respected ever since the period of our independence.

Sir, if I am right in this, let me ask whether in adopting the new code which now prevails, and by which the rights of the Indians have been trampled on, and the most solemn obligations of treaties have been disregarded, we are not chargeable with having induced that power to conclude a peace with us by suggestions utterly unfounded and erroneous?

Most of the treaties between the Cherokee nation of Indians and the United States have been submitted to the senate for ratification, and the senate have acted upon them in conformity with their constitutional power. Besides the action of the senate, as a legislative body, in the enactment of laws in conformity with their stipulations, regulating the intercourse of our citizens with that nation, it has acted in its separate character, and confirmed the treaties themselves by the constitutional majority of two thirds of its members. Thus have those treaties been sanctioned by the government of the United States, and by every branch of that government; by the senate, the executive, and the supreme court; both at home and abroad. But not only have the rights of the Cherokees received all these recognitions; they have been, by implication, recognised by the state of Georgia itself, in the act of 1802, in which she stipulated that the government of the United States, and not the state of Georgia, should extinguish the Indian title to land within her limits; and the general government has been, from time to time, urged by Georgia to comply with its engagement from that period until the adoption of the late new policy upon this subject.

Having thus, Mr. President, stated, as I hope with clearness, the RIGHTS of the Indian tribes, as recognised by the most solemn acts that can be entered into by any government, let me, in the next place, inquire into the nature of the INJURIES which have been inflicted upon them; in other words, into the present condition of these Cherokees, to whom protection had been assured as well by solemn treaties as by the laws and guarantees of the United States government.

And here let me be permitted to say, that I go into this subject with feelings which no language at my command will enable me adequately to express. I assure the senate, and in an especial manner do I assure the honorable senators from Georgia, that my wish and purpose is any other than to excite the slightest possible irritation on the part of any human being. Far from it. I am actuatedonly by feelings of grief, feelings of sorrow, and of profound regret, irresistibly called forth by a contemplation of the miserable condition to which these unfortunate people have been reduced by acts of legislation proceeding from one of the states of this confederacy. I again assure the honorable senators from Georgia, that, if it has become my painful duty to comment upon some of these acts, I do it not with any desire to place them, or the state they represent, in an invidious position; but because Georgia was, I believe, the first in the career, the object of which seems to be the utter annihilation of every Indian right, and because she has certainly, in the promotion of it, far outstripped every other state in the union.

I have not before me the various acts of the state in reference to the Indians within her bounds; and it is possible I may be under some mistake in reference to them; and if I am, no one will correct the error more readily, or with greater pleasure.

If, however, I had all those laws in my hands, I should not now attempt to read them. Instead of this, it will be sufficient for me to state the effects which have been produced by them upon the condition of the Cherokee Indians residing in that state. And here follows a list of what has been done by her legislature. Her first act was to abolish the government of these Cherokees. No human community can exist without a government of some kind; and the Cherokees, imitating our example, and having learned from us something of the principles of a free constitution, established for themselves a government somewhat resembling our own. It is quite immaterial to us what its form was. They always had had some government among them; and we guarantied to them the right of living under their own laws and customs, unmolested by any one; insomuch that our own citizens were outlawed should they presume to interfere with them. What particular regulations they adopted, in the management of their humble and limited concerns, is a matter with which we have no concern. However; the very first act of the Georgia legislature was, to abolish all government of every sort among these people, and to extend the laws and government of the state of Georgia over them. The next step was to divide their territory into counties; the next, to survey the Cherokee lands; and the last, to distribute this land among the citizens of Georgia by lottery, giving to every head of a family one ticket, and the prize in land that should be drawn against it. To be sure there were many reservations for the heads of Indian families; and of how much did gentlemen suppose? of one hundred and sixty acres only, and this to include their improvements. But even to this limited possession the poor Indian was to have no fee simple title; he was to hold as a mere occupant, at the will of the state of Georgia, for just as long or as short a time as she might think proper. The laws at the same time gave him noone political right, whatever. He could not become a member of the state legislature, nor could he hold any office under state authority, nor could he vote as an elector. He possessed not one single right of a freeman; no; not even the poor privilege of testifying to his wrongs in the character of a witness in the courts of Georgia, or in any matter of controversy, whatsoever.

These, Mr. President, are the acts of the legislature of the state of Georgia, in relation to the Indians. They were not all passed at one session; they were enacted, time after time, as the state advanced further and further in her steps to the acquisition of the Indian country, and the destruction and annihilation of all Indian rights; until, by a recent act of the same body, the courts of the state itself are occluded against the Indian sufferer, and he is actually denied an appeal even to foreign tribunals, in the erection and in the laws of which he had no voice, there to complain of his wrongs. If he enters the hall of Georgia’s justice, it is upon a surrender at the threshold of all his rights. The history of this last law, to which I have alluded, is this; when the previous law of the state dividing the Indian lands by lottery was passed, some Indians made an appeal to one of the judges of the state, and applied for an injunction against the proceeding; and such was the undeniable justice of their plea, that the judge found himself unable to refuse it, and he granted the injunction sought. It was that injunction which led to the passage of this act; to some of the provisions of which I now invite the attention of the senate. And first to the title of the act; ‘a bill to amend an act entitled an act more effectually to provide for the government and protection of the Cherokee Indians residing within the limits of Georgia, and to prescribe the bounds of their occupant claims; and also to authorize grants to issue for lots drawn in the late land and gold lotteries’—ah, sir, it was the pursuit of gold which led the Spanish invader to desolate the fair fields of Mexico and Peru—‘and to provide for the appointment of an agent to carry certain parts thereof into execution; and to fix the salary of such agent, and to punish those persons who may deter Indians from enrolling for emigration, passed the twentieth of December, 1833.’ Well, sir, this bill goes on to provide, ‘that it shall be the duty of the agent or agents appointed by his excellency the governor, under the authority of this or the act of which it is amendatory, to report to him the number, district, and section of all lots of land subject to be granted by the provisions of said act, which he may be required to do by the drawer, or his agent, or the person claiming the same; and it shall be the duty of his excellency the governor, upon the application of the drawer of any of the aforesaid lots, his or her special agents, or the person to whom the drawer may have bonâ fide conveyed the same, his agent or assigns, to issue a grant therefor; and it shall be the duty of the said agent or agents, upon the production of the grant so issued as aforesaid by the grantor,his or her agent, or the person, or his or her agent to whom said land so granted as aforesaid may have been bonâ fide conveyed, to deliver possession of said granted lot to the said grantee, or person entitled to the possession of the same under the provisions of this act, or the act of which this is amendatory, and his excellency the governor is hereby authorized, upon satisfactory evidence that the said agent is impeded or resisted in delivering such possession, by a force which he cannot overcome, to order out a sufficient force to carry the power of said agent or agents fully into effect, and to pay the expenses of the same out of the contingent fund; provided nothing in this act shall be so construed as to require the interference of the said agent between two or more individuals claiming possession, by virtue of titles derived from a grant from the state to any lot.’

Thus, after the state of Georgia had distributed the lands of the Indians by lottery, and the drawers of prizes were authorized to receive grants of the land drawn, and with these grants in their hand were authorized to demand of the agent of the state, appointed for the purpose, to be put in possession of the soil thus obtained; and if any resistance to their entry should be made, and who was to make it but a poor Indian? the governor is empowered to turn out the military force of the state, and enable the agent to take possession by force, without trial, without judgment, and without investigation.

But, should there be two claimants of the prize, should two of the ticket-holders dispute their claim to the same lot, then no military force was to be used. It was only when the resistance was by an Indian—it was only when Indian rights should come into collision with the alleged rights of the state of Georgia—that the strong hand of military power was instantly to interpose.

The next section of the act is in these words: ‘and be it further enacted by the authority aforesaid, that if any person dispossessed of a lot of land under this act, or the act of which it is amendatory, shall go before a justice of the peace or of the inferior court, and make affidavit that he or she was not liable to be dispossessed under or by any of the provisions of this or the aforesaid act, and file said affidavit in the clerk’s office of the superior court of the county in which said land shall lie, such person upon giving bond and security in the clerk’s office for the costs to accrue on the trial, shall be permitted within ten days from such dispossessing to enter an appeal to said superior court and at said court, the judge shall cause an issue to be made up between the appellant and the person to whom possession of said land was delivered by either of said agents, which said issue shall be in the following form.’

[Mr. Cuthbert, of Georgia, here interposed; and having obtained Mr. Clay’s consent to explain, stated that he had unfortunately not been in the senate when the honorable senator commenced his speech; but had learned that it was in support of a memorialfrom certain Cherokee Indians in the state of Georgia, who desired to emigrate. He must be permitted to say, that the current of the honorable senator’s remarks did not suit remarkably well the subject of such a memorial. A memorial of a different kind had been presented, and which the committee on Indian affairs had before it, to which the senator’s remarks would better apply. The present discussion was wholly unexpected, and it seemed to him not in consistency with the object of the memorial he had presented.]

Mr. Clay replied, that he was truly sorry the honorable gentleman had been absent when he commenced speaking. He had delayed presenting the memorial, because he observed that neither of the senators from Georgia was in his seat, until the hour when they might be expected to be present, and when one of them, (Mr. King,) had actually taken his seat. If the honorable senator had been present he would have heard Mr. Clay say that he thought the presentation of the memorial a fit occasion to express his sentiments, not only touching the rights of these individual petitioners, but on the rights of all the Indian tribes, and their relations to this government. And if he would have but a little patience he would find that it was Mr. Clay’s intention to present propositions which went to embrace both resolutions.

Mr. Clay now resumed the course of his speech. And here, Mr. President, let me pause, and invite the attention of the senate to the provision in the act of Georgia which I was reading, (the substance of which Mr. Clay here repeated,) that is, that he may have the privilege of an appeal to a tribunal of justice by forms and by a bond with the nature and force of which he is unacquainted; and that then he may have—what beside? I invoke the attention of the senate to this part of the law. What, I ask, does it secure to the Indian? His rights? the rights recognised by treaties? the rights guarantied to him by the most solemn acts which human governments can perform? No. It allows him to come into the courts of the state, and there to enjoy the benefit of the summary proceeding called in the act ‘an appeal,’ but which can never be continued beyond a second term; and when he comes there, what then? He shall be permitted to come into court and enter an appeal, which shall be in the following form.

“A. B., who was dispossessed of a lot of land by an agent of the state of Georgia, comes into court, and, admitting the right of the state of Georgia to pass the law under which agent acted, avers that he was not liable to be dispossessed of said land, by or under any one of the provisions of the act of the general assembly of Georgia, passed the twentieth of December, 1833, ‘more effectually to provide for the protection of the Cherokee Indians residing within the limits of Georgia, and to prescribe the bounds of their occupant claims, and also to authorize grants to issue for lots drawn in the land and gold lotteries in certain cases, and to provide for the appointment of an agent to carry certain parts thereof into execution, and fix the salary of such agent, and to punish those persons who may deter Indians from enrolling for emigration,’ or the act amendatory thereof, passed at the session of the legislature of 1834: ‘in which issue the person to whom possession of said land was delivered shall join; and which issue shall constitute the entire pleadings between the parties; nor shall the court allow any matter other than is contained in said issue to be placed upon the record or files of said court; and said cause shall be tried at the first term of the court, unlessgood cause shall be shown for a continuance, and the same party shall not be permitted to continue said cause more than once, except for unavoidable providential cause; nor shall said court at the instance of either party pass any order or grant any injunction to stay said cause, nor permit to be engrafted on said cause any other proceedings, whatever.’”

At the same time, we find, by another enactment, the judges of the courts of Georgia are restrained from granting injunctions, so that the only form in which the Indian can come before them, is in the form of an appeal; and in this, the very first step is an absolute renunciation of the rights he holds by treaty, and the unqualified admission of the rights of his antagonist, as conferred by the laws of Georgia; and the court is expressly prohibited from putting any thing else upon the record. Why? do we not all know the reason? If the poor Indian was allowed to put in a plea stating his rights, and the court should then decide against him, the cause would go upon an appeal to the supreme court; the decision could be reëxamined, could be annulled, and the authority of treaties vindicated. But, to prevent this, to make it impossible, he is compelled, on entering the court, to renounce his Indian rights, and the court is forbidden to put any thing on record which can bring up a decision upon them.

Mr. President, I have already stated that, in the observations I have made, I am actuated by no other feelings than such as ought to be in the breast of every honest man, the feelings of common justice. I would say nothing, I would whisper nothing, I would insinuate nothing, I would think nothing, which can, in the remotest degree, cause irritation in the mind of any one, of any senator here, of any state in this union; I have too much respect for every member of the confederacy. I feel nothing but grief for the wretched condition of these most unfortunate people, and every emotion of my bosom dissuades me from the use of epithets that might raise emotions which should draw the attention of the senate from the justice of their claims. I forbear to apply to this law any epithet of any kind. Sir, no epithet is needed. The features of the law itself; its warrant for the interposition of military power, when no trial and no judgment has been allowed; its denial of any appeal, unless the unhappy Indian shall first renounce his own rights, and admit the rights of his opponent; features such as these are enough to show what the true character of the act is, and supersede the necessity of all epithets, were I even capable of applying any.

The senate will thus perceive that the whole power of the state of Georgia, military as well as civil, has been made to bear upon these Indians, without their having any voice in forming, judging upon, or executing the laws under which he is placed, and without even the poor privilege of establishing the injury he may have suffered, by Indian evidence; nay, worse still, not even by the evidence of a white man! Because the renunciation of his rightsprecludes all evidence, white or black, civilized or savage. There then he lies, with his property, his rights, and every privilege which makes human existence desirable, at the mere mercy of the state of Georgia; a state, in whose government or laws he has no voice. Sir, it is impossible for the most active imagination to conceive a condition of human society more perfectly wretched. Shall I be told that the condition of the African slave is worse? No, sir; no, sir. It is not worse. The interest of the master makes it at once his duty and his inclination, to provide for the comfort and the health of his slave; for without these, he would be unprofitable. Both pride and interest render the master prompt in vindicating the rights of his slave, and protecting him from the oppression of others; and the laws secure to him the amplest means to do so. But who, what human being, stands in the relation of master or any other relation, which makes him interested in the preservation and protection of the poor Indian thus degraded and miserable? Thrust out from human society, without the sympathies of any, and placed without the pale of common justice, who is there to protect him, or to defend his rights?

Such, Mr. President, is the present condition of these Cherokee memorialists, whose case it is my duty to submit to the consideration of the senate. There remains but one more inquiry before I conclude. Is there any REMEDY within the scope of the powers of the federal government, as given by the constitution? If we are without power, if we have no constitutional authority, then we are also without responsibility. Our regrets may be excited, our sympathies may be moved, our humanity may be shocked, our hearts may be grieved, but if our hands are tied, we can only unite with all the good, the christian, the benevolent portion of the human family, in deploring what we cannot prevent.

But, sir, we are not thus powerless. I stated to the senate when I began, that there are two classes of the Cherokees; one of these classes desires to emigrate, and it was their petition I presented this morning; and with respect to these, our powers are ample to afford them the most liberal and effectual relief. They wish to go beyond the Mississippi, and to be guarantied in the possession of the country which may be there assigned to them. As the congress of the United States have full powers over the territories, we may give them all the guarantee which congress can express, for the undisturbed possession of their lands. With respect to their case, there can be no question as to our powers.

And, then, as to those who desire to remain on this side the river, I ask, again, are we powerless? Can we afford them no redress? Must we sit still, and see the injury they suffer, and extend no hand to relieve them? It were strange, indeed, were such the case. Why have we guarantied to them the enjoyment of their own laws? Why have we pledged to them protection?Why have we assigned them limits of territory? Why have we declared that they shall enjoy their homes in peace, without molestation from any? If the United States government has contracted these serious obligations, it ought, before the Indians were reduced by our assurances to rely upon our engagement, to have explained to them its want of authority to make the contract. Before we pretend to Great Britain, to Europe, to the civilized world, that such were the rights we would secure to the Indians, we ought to have examined the extent and the grounds of our own rights to do so. But is such, indeed, our situation? No, sir. Georgia has shut her courts against these Indians. What is the remedy? To open ours. Have we not the right? What says the constitution? ‘The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’

But here was a case of conflict between the rights of the proprietors and the local laws; and here was the very case which the constitution contemplated, when it declared that the power of the federal judiciary should extend to all cases under the authority of the United States. Therefore, it was fully within the competence of congress, under the provisions of the constitution, to provide the manner in which the Cherokees might have their rights decided, because a grant of the means was included in the grant of jurisdiction. It was competent, then, for congress to decide, whether the Cherokee had a right to come into a court of justice and to make an appeal to the highest authority, to sustain the solemn treaties under which their rights had been guarantied, and in the sacred character of which they had reposed their confidence. And if congress possessed the power to extend relief to the Indians, were they not bound, by the most sacred of human considerations, the obligations of treaties, the protection assured them, by every christian tie, every benevolent feeling, every humane impulse of the human heart, to extend it? If they were to fail to do this, and there was, as reason and revelation declared there was, a tribunal of eternal justice, to which all human power was amenable, how could they, if they refused to perform their duties to this injured and oppressed, though civilized race, expect to escape the visitations of that divine vengeance which none would be permitted to avoid, who had committed wrong, or done injustice to others?

At this moment, when the United States were urging on the government of France the fulfilment of the obligations of the treaty concluded with that country, to the execution of which, it was contended that France had plighted her sacred faith, what strength, what an irresistible force would be given to our plea, if we could say to France, that, in all instances, we had completely fulfilled all our engagements, and that we had adhered faithfully to every obligation which we had contracted, no matter whether itwas entered into with a powerful or a weak people; if we could say to her, that we had complied with all our engagements to others, that we now came before her, always acting right as we had done, to induce her also to fulfil her obligations to us. How should we stand in the eyes of France, and of the civilized world, if we, in spite of the most solemn treaties, which had existed for half a century, and had been recognised in every form, and by every branch of the government; how would they be justified, if they, suffered these treaties to be trampled under foot, and the rights which they were given to secure, trodden into the dust? How would Great Britain, after the solemn understanding entered into with her at Ghent, feel, after such a breach of faith? And how could he, as a commissioner on the negotiation of that treaty, hold up his head before Great Britain, after having been thus made an instrument of fraud and deception, as he assuredly would have been, if the rights of the Indians are to be thus violated, and the treaties by which they were secured, violated? How could he hold up his head, after such a violation of rights, and say that he was proud of his country, of which they all must wish to be proud?

For himself, he rejoiced that he had been spared, and allowed a suitable opportunity to present his views and opinions, on this great national subject, so interesting to the national character of the country for justice and equity. He rejoiced that the voice which, without charge of presumption or arrogance, he might say, was ever raised in defence of the oppressed of the human species, had been heard in defence of this most oppressed of all. To him, in that awful hour of death, to which all must come, and which, with respect to himself, could not be very far distant, it would be a source of the highest consolation, that an opportunity had been found by him, on the floor of the senate, in the discharge of his official duty, to pronounce his views on a course of policy marked by such wrongs as were calculated to arrest the attention of every one, and that he had raised his humble voice, and pronounced his solemn protest, against such wrongs.

He would no longer detain the senate, but would submit the following propositions.

Resolved, that the committee on the judiciary be directed to inquire into the expediency of making further provision, by law, to enable Indian nations or tribes, to whose use and occupancy lands are secured by treaties concluded between them and the United States, to defend and maintain their rights to such lands, in the courts of the United States, in conformity with the constitution of the United States.

Resolved, that the committee on Indian affairs be directed to inquire into the expediency of making further provisions, by law, for setting apart a district of country west of the Mississippi river, for such of the Cherokee nation as may be disposed to emigrate and to occupy the same, and for securing, in perpetuity, the peaceful and undisturbed enjoyment thereof, to the emigrants and their descendants.

Mr. Clay moved that the memorial and resolutions adopted by the council of the Running Waters, be referred to the committee on Indian affairs, and printed.

As to his resolutions, he knew, that in the regular order of business, they could not be taken up until to-morrow, but, if it met with the approbation of the senate, he would be as well disposed to act on them to-day as to-morrow.

In reply to Mr. Cuthbert, of Georgia, and Mr. White, of Tennessee, Mr. Clay said he could assure the honorable senator from Georgia, that nothing was further from his purpose, than to make any display on this occasion. That he always left to others, and by the judgment of the senate he was willing to abide, whether the honorable senator himself had not been guilty of that which he imputed to others. For, after addressing the senate, himself, some time, he had said that he did not intend arguing the question, that Georgia would not appear before the senate or any other tribunal. Now, Georgia might be content to do that, but could congress, could honorable senators, reconcile it with their duty, with their responsibility, to coldly contemplate the violation of numerous treaties, to witness the destruction of a people under the protection of the United States, and to let that injustice which had been inflicted on these unfortunate Cherokees, be perpetuated without the slightest notice on their part?

The gentleman from Tennessee, (Mr. White,) had remarked, that they were all unconstitutional treaties; that they had no binding force as treaties; that general Washington was mistaken; that every succeeding administration was mistaken; that general Jackson himself was mistaken, in 1817, in regard to these treaties. Now, if they gave the argument of the honorable senator from Tennessee its full force, what was the consequence? What did he, (Mr. Clay,) offer? He said, merely to open the question to the court. If they had no validity, if the question which was sent to the judiciary did not rest upon treaties, they could vindicate no rights under them. Why had Georgia, if she believed there were no treaties, made provisions in her late act to which he had referred? Why shut out the rights of the Indians under the treaty? Why, if she was convinced of the unconstitutionality of the treaties, did she not allow them to be submitted to the federal judiciary, which was bound to declare that they were not obligatory and binding, if unconstitutional? Why has she studiously precluded the possibility of a review, in the supreme court, of the decisions of the local tribunals? But the gentleman had told the senate, that the treaty of ’91 was the first that guarantied to the Cherokees their lands, and that president Washington doubted whether it was necessary to submit it to the senate. It might be true, at the commencement of the government, when every thing was new and unfixed, that there were doubts; but general Washington decided that it was a treaty, and laid it, with his doubts, before the senate, who decided them, and the treaty was ratified by and with the consent of the senate. And from that day thosedoubts have remained dispelled. He was indebted to the honorable senator for the historical fact which he, (Mr. Clay,) had not before pressed, that this very guaranty which secured to the Indians the undisturbed possession of their lands in the treaty of ’91, was inserted by the express direction of the father of his country. And the senate was called upon now, not merely to violate the solemn obligations which the whole nation had contracted, but to violate the provision which had been inserted at the instance of the venerated father of his country!

The honorable senator had told this body, that the treaty of ’91 was the first in which there was any guarantee. If the gentleman meant to say it was the first in which there was any express guarantee, he, (Mr. Clay,) would admit it. But, in the treaty of ’85, if it was not expressed, was it not implied? What was that clause, marking the boundaries of their territory? That, in the same treaty, which places the Indians under the protection of the United States, and excludes them from the authority of any other sovereign? And that, which outlaws citizens of the United States who intrude in their territory? What was the meaning of those clauses, if they did not, by implication at least, guaranty their rights, their property, and the peace of their country? But, the gentleman says, that in inserting the guaranty of ’91, there was a mistake; it was supposed that it was without the limits of North Carolina, and other states; a mistake which ran through all the treaties from that time down to 1817, which renewed and enforced the preëxisting treaties. So that general Jackson himself had been acting under a mistake when he signed the treaty of 1817. Is it possible, that, if a mistake were committed as early as 1791, it would not have been corrected in some of the various treaties negotiated as late as 1817?

The senator had said also, that the states had a right to extend their laws over all the territories and people within their limits, as defined by the treaty of ’83. Why, that was the very question under consideration, the identical question to be submitted to the judiciary. He, (Mr. Clay,) contended that the states had no right to extend their laws over that portion of the territory assigned to the Indians, or over the Indians dwelling upon it. And that is the exact question which his resolution proposes to be submitted to the determination of the judiciary, and which the late act of Georgia carefully shuns.

But the senator from Tennessee had asked, ‘what will the poor Indian, with his six hundred and forty acres of land, do, contending for his rights in a court of justice?’ Why, he, (Mr. Clay,) would admit that his condition would be miserable enough; but it was all they could do for him, and they were bound to do all they could, under the constitutional power they possessed, to maintain his rights. But, he would ask, what was to prevent these Indians,in their corporate, or collective character, from bringing their grievances before the courts? Nothing. And, that they were competent to this, we had only to look at the state papers which had emanated from them, and which did them immortal credit, to be convinced. The senator from Tennessee asked, ‘what the states would do? Would they array the federal power against the power of the state governments, and thus produce that condition of things which must result in the Indians’ being stricken from the face of the earth?’ Did not the honorable senator remember the period when a state of this union was actually arrayed and marshalled to defend its interpretation of the constitution? He was hearty in the support of the force bill; he did not stop to look at the possible consequences of a civil war. He, (Mr. Clay,) gave it his reluctant and most painful support. He would gladly have turned the bitter cup from his lips, but he felt it to be his duty to sustain the authority of the general government; and, after giving to the subject the most solemn and serious consideration, he felt himself constrained to sustain that measure. And he went along with the senator from Tennessee upon the principle, now denied by him, that the federal authority must maintain its dignity. He went upon the ground, now abandoned by the senator from Tennessee, that no state ought to array itself against the constitutional powers of this government.

How was the fact up to the period of 1829? The gentleman from Tennessee tells us the true policy of this government is to send these poor creatures beyond the Mississippi, and that there is no impediment in the obligations of subsisting treaties. Never, until the new light burst upon us, that hundreds of Indian treaties, made during a period of half a century, under almost every administration of the government, concluded and ratified with all the solemn forms of the constitution, and containing the most explicit guarantees and obligations of protection to the Indians, and of security to their possessions, were mere nullities, was it supposed competent to effect a compulsory removal of the Indians beyond the Mississippi. It is true, that the policy of removing them has been long entertained; was contemplated by Mr. Jefferson; but it was a free, voluntary, and unconstrained emigration. No one, until of late, ever dreamed of a forcible removal, against their consent, accomplished either by the direct application of military power, or by cruel and intolerable local legislation. He wished that they would voluntarily remove. He believed that absorption or extinction was the only alternative of their remaining in the bosom of the whites. But they were a part of the human race, as capable as we are of pleasure and pain, and invested with as indisputable a right as we have, to judge of and pursue their own happiness.

It is said, that annihilation is the destiny of the Indian race.Perhaps it is, judging from the past. But shall we therefore hasten it? Death is the irreversible decree pronounced against the human race. Shall we accelerate its approach, because it is inevitable? No, sir. Let us treat with the utmost kindness, and the most perfect justice, the aborigines whom Providence has committed to our guardianship. Let us confer upon them, if we can, the inestimable blessings of christianity and civilization, and then, if they must sink beneath the progressive wave of civilized population, we are free from all reproach, and stand acquitted in the sight of God and man.

The senator from Tennessee has left the senate under the impression, no doubt unintentionally, that three other states had advanced as far as Georgia in the exercise of a jurisdiction over the Indians and their property. But if he, (Mr. Clay,) were rightly informed, this was far from correct. North Carolina had exercised no such jurisdiction. She had not touched a hair upon the head of any Indian. Tennessee had extended her laws to the Indian country, for the sole purpose of protecting the Indians, and punishing the white intruders. Her upright judges and tribunals concurred, unanimously, if he were rightly informed, in supporting the Indian rights. No state, he believed, but Georgia, had seized upon the Indian lands, and distributed them among the whites. From the commencement of our independence down to this time, there was not another instance of such seizure, and appropriation, by any other member of the confederacy.

Mr. Clay assured the senator from Georgia, that he had not sought for the position in which he was placed. It was sought of him. He was applied to by the unfortunate Cherokees, to present their case to the senate. And he should have been false and faithless to his own heart, and unworthy of human nature, if he had declined to be their organ, however inadequate he feared he had proved himself to be.

On the whole, then, said Mr. Clay, the resolutions proposed an inquiry into the suitableness of making further provision for the Cherokees who choose to emigrate beyond the Mississippi. And in regard to those of them who will not go, but who prefer to cling to the graves of their forefathers, and to the spot which gave them birth, in spite of any destiny impending over them, the resolution proposes, that, since Georgia has shut her courts against them, we should inquire whether we should not open those of the federal government to them, and ascertain whether, according to the constitution, treaties, and laws, we are capable of fulfilling the obligations which we have solemnly contracted.

The memorial of the Cherokees was then referred to the committee on Indian affairs, and Mr. Clay’s resolutions laid on the table for one day.

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