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.