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.

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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.