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From the first settlement of North America by Englishmen, it has been the practice to obtain Indian lands through the medium of treaties or voluntary purchases. In a few cases, lands were wrested from the original possessors in war; but the colonists never avowed the desire of conquest as a justifiable cause of war.
Though nearly all the parts of the United States, which are now inhabited by whites, were purchased from Indians, yet it does not follow that undue measures were not frequently resorted to, in order to induce a sale. · Among these measures, unreasonable importunity deserves to be reckoned. New lands were obtained more rapidly than the necessities of the whites demanded; and the eagerness, with which acquisitions of territory were made from the Indians, naturally caused a good deal of apprehension in their minds.
As the British power on this continent increased, the claims and rights of the Indians were generally admitted. No pretensions were made to the right of taking their land from them without their consent. If they sold any part of their territory, they were required to sell it to the government, or the validity of the sale was not acknowledged by the British tribunals. This was the state of things at the commencement of the revolutionary war.
As soon as the Continental Congress began to act as the organ of the United States, (that is, as the organ of a nation which had just sprung into existence,) measures were taken to conciliate the favor of the Indians. They were addressed as independent sovereignties. They were entreated to remain neutral. Their territorial rights were guarantied to them; and they were dealt with, in all respects, as capable of making treaties, and of retaining forever their original rights of territory and government.
After the peace of 1783, the Confederated States entered into treaties with the large south-western tribes, the Cherokees, Creeks, Choctaws and Chickasaws. In this manner boundaries were fixed, and an implicit guaranty of territory was given. At the adoption of the Federal Constitution, all these treaties were confirmed and ratified, not by the nation merely, as a whole, but by each State, as it performed the solemn act of coming into the Union.
President Washington, in the early part of his administration, applied directly to the Senate, and asked whether that body would advise and consent to give a solemn guaranty to the Creek and Cherokee nations of all their lands not ceded. To this question, proposed first in 1789, and again a year afterwards, the Senate gave, in each instance, an affirmative answer, without a dissenting voice. Treaties were made on this basis, first at New York with the Creeks, then at Holston with the Cherokees, in both of which the guaranty was solemnly given, and afterwards solemnly ratified by the Senate.
Treaties were made by the United States with Indian nations, as occasion required; the number of such treaties amounting to more than three in a year, on an average. Several of these treaties were negotiated with the tribes, whose residence was within the chartered limits of Georgia. In 1802, a compact was made between the United States and Georgia, by which a long controversy was settled, and the United States bound themselves to extinguish the Indian title to lands within the chartered limits of that State. The obligation was conditional, however; and there was nothing in the compact, which implied that the United States did not acknowledge the perfect right of the Indians to the peaceable and exclusive occupancy of their country forever.
Since 1802, numerous treaties have been made with the Indians, in most of which, portions of their territory were ceded to the United States. In this manner, Georgia has received about 20,000,000 of acres under the compact; and about 5,000,000 of acres now remain in the occupancy of the Cherokees, within the chartered limits of that State. Since the year 1819, the Cherokees have peremptorily and constantly refused to sell another foot of land. In the mean time, Georgia was constantly importuning the general government to extinguish the Cherokee title by treaty; always admitting, that this was the only way, in which the Indian title could be extinguished.
But suddenly, in December 1827, the legislature and executive of Georgia assumed an attitude entirely new, and totally unlike any position which had ever before been assumed by any State in the Union, or by the United States. The new attitude was produced by the annunciation of the following doctrines, and others of a similar character; viz. that Georgia has a perfect title, by the right of discovery, to all the land within her chartered limits; that the Indians have no title, but a mere occupancy, determinable at the pleasure of Georgia ; that she may take possession of their lands by force ; that the United States are bound to extinguish the Indian title, either by negotiation or force'; and that, as the United States have failed in their engagements, Georgia has a right to take the matter into her own hands.
As a consequence of these doctrines, Georgia declares, that, if other means fail, she will resort to violence in support of her claims; and that, as she wants the Cherokee lands, she will have them.
Following up these principles, in 1828 and 1829, Georgia extends her laws over the Cherokees, and enacts several provisions of a most oppressive and tyrannical character. The Cherokees immediately resort to the guaranty of the United States, and ask protection against these laws. The President of the United States informs them, that he has no constitutional power to protect them. They next petition Congress; and, while their petition is pending and unanswered, a bill is introduced for the purpose of enabling them to remove. They say, that they do not wish to remove, but to remain on the land of their fathers.
In this state of things, the bill, in opposition to which the following speeches were delivered, became the topic of debate. It has been suggested, that the heads of arguments in favor of the bill should here be given; and, after some hesitation, the editor has concluded to give a brief abstract of them. The hesitation arose from the nature and character of these arguments. They are almost universally founded on false assumptions. But many readers would have no conception how utterly groundless the assumptions are ; and to send them forth to the public. unexplained, seems to give them a standing to which they are by no means entitled. How many readers are there, in every community, who look at an introduction of a book, with a few indiscriminate passages here and there, and read no more! If a plausible case is made out at the beginning, they take it for granted, that the facts, at least, are correctly stated. But nothing could be more fallacious in reference to the case before us. It was stated, by the advocates of the bill, that the United States had bound themselves, by the compact of 1802, to extinguish the Indian title to lands within the limits of Georgia ; and many elaborate arguments rested on this assumption. But the fact, that the engagement was conditional, was omitted. The advocates of the bill asserted, also, that other States had legislated over the Indians in the same manner, and to the same extent, as Georgia has recently done. For this assertion there is no support whatever. Let these two instances stand as specimens.
In the following statement of topics, the positions, if not the words, are taken from printed speeches of advocates of the bill, and from the reports of the committees on Indian affairs.
On the question, whether the Indians had any right to their country or not, it was alleged, by the advocates of the bill,
That the king of England claimed the right of disposing of territory, on this continent, without any regard to the possession of the Indians; that they were considered merely as an incumbrance; and that the proclamation of 1763 assumed the sovereignty of Great Britain over the Indians :
That, on the declaration of independence, the States, respectively, succeeded to the sovereignty of the mother country :
That, from the first settlement of North America, the natives were subjected to the arts and the arms of Europeans; that civilization and force prevailed; and that, although the course of measures with the Indians cannot be justified, it will always be imitated :
That the Cherokees are a conquered people, having been the allies of Great Britain in the revolutionary war: and
That, being a conquered people, they have no claim to territory or self-government.
It is not unjust, or oppressive, therefore, in Georgia to assert her claims to the land of the Cherokees.
In answer to the plea for protection, which the Cherokees offer, it was urged,
That, although many compacts had been made between the United States and Indians, which had been called treaties, and which had been sent to the Senate and ratified as treaties, yet, when made with tribes residing in any State, they were not in fact treaties, within the meaning of the Constitution :
That these compacts, which are called treaties, were submitted to by the several States, because the States acquired lands in this manner; but when the States were limited in their jurisdiction, and restrained in their rights, by these compacts, it could not be expected that they would submit any longer :
That compacts with Indians not within the limits of States are treaties, according to the Constitution; because, in these cases, the national government alone can treat with them:
That the guaranty given in the treaty of Holston was intended more for the intimidation of the whites, than as a serious protection of the Indians :
That, when the guaranty was repeated, seven years afterwards, there was no necessity of repeating it: and
That it is very absurd to suppose, that independent States will suffer their limits to be curtailed by tribes of savages.
On the subject of the rights of Georgia, as an independent State, it was urged,
That she would assert her right to a jurisdiction over all the territory within her own limits :
That, although she has a very inconsiderable interest in the question now before Congress, she is determined to assert and maintain the rights of sovereign and independent States :
That neither the United States, nor any separate State, has a right to demand of Georgia the reasons of her conduct in regard to her own population, or any class of persons residing within her limits : and
That nothing will prevent her executing her purposes in this matter.