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Jar. 6, 1834.]
Alabama and the Executive of the United States.
[H. or R.
of the treaty, circumstances would render the enforcement public lands, until they were sold by the Government. of such provision unnecessary. Sir, the opinions of the The validity of a contract with an Indian to purchase his President as to his power to remove intruders from among improvement was admitted by the laws of Alabama, and the Indians, or to prevent the operation of the State laws would have been respected in her courts. Under these over them, have been too frequently expressed to be legislative and legal sanctions, then, the settlements in the mistaken at this day. Not only bis opinions, but his prac. Creek country were made; and made, too, as it was unitice has been against it. It is a matter of public history versally believed, in accordance with the established policy that he has refused, in every instance, to execute the in- of this Government. tercourse law, by expelling intruders from an Indian Mr. L. asked what had been the policy of the Governcountry, where the laws of the State were extended over ment since the passage of the act of 1807? Was it not it. He has in no instance, heretofore, felt it his duty to to encourage rather than to prevent settlements on the enforce the act of 1807, by removing intruders from the public lands? Were not the pioneers in such settlements public lands, as that act requires. If he has, he must regarded as constituting a meritorious class, and, in many knowingly and wilfully have violated his duty in suffer- instances, rewarded by pre-emption rights? Do they not, ing daily violations of that law. There is not a district of in fact, impart value by their improvements, not only to public lands in the Union where this law is not now suf. their own tract, but to the adjoining land? Mr. L. said fering violation. Were not the settlers on the Choctaw that the Government had in no instance made profitable lands suffered to trample on this law with impunity? sale of her public domain, unless it had been first peneHas the Executive the power to suspend or to enforce trated improved by these pioneers of the wilderness. this law, at pleasure? Can he declare it law to-day, and no They set up no title to the land, as has been erroneously law to-morrow-binding in one place, and of no force in asserted and believed, but claim merely the privilege of another? If the act of 1807 be constitutional and binding, remaining on the land, and, in fact, adding to its value, it ought to be enforced in every instance; if not, a treaty until it is sold by the Government. provision cannot make it binding.
But, said Mr. L., not only were the settlers beguiled, by But, sir, has not the Executive refused to enforce even the general policy of the Government, into a violation of treaty stipulations with the Cherokees, on the ground the act of 1807, but they were actually encouraged in that they were citizens of Georgia, and subject to her their settlements by letters received from the Secretary laws? Under a treaty which guaranties to them the un. of War. He (Mr. L.) could not at that time lay his band disturbed possession and enjoyment of their lands, the on some of these letters he had seen published, but he Georgians have not only settled the country, but the would read an extract from one written on the 8th DeState has actually disposed of the lands to its own citizens cember, 1832, to Messrs. King, Clay, and Mardis, in by lottery, reserving to the Indians only a right of reser- which permission is given to those who obtained peacevation to their improvements; and yet no laws have been able possession of the land on which they live, &c., to enforced for their relief, and we hear of no military dis- occupy these tracts till the several selections are made." play like that which now exists at Fort Mitchell. This amounted, in most cases, to a pledge that the set
Sir, so capricious has the President been on this subo tlers should remain undisturbed for the Secretary of ject of removing settlers from Indian lands, that in this war will not contend that he has any right to remove very Creek treaty a stipulation was made that the settlers them after the selections are made, unless, indeed, in who were then on the Creek lands should be suffered to those few cases where an Indian reservation may chance remain till their crops were gathered. If these settlers to cover their settlement. violated the law, and were intruders by settling on the But, Mr. L. said, he would, in addition to this, prove, Creek lands before the treaty, the President surely would by a letter written in May last, by the superintendent of not bave made a treaty stipulation to have protected them Indian affairs, Mr. Herring, to Colonel Montgomery, agent in such violation: if they had violated no law, and were of the Cherokees, that the President expressly denied not intruders at the time they entered the country, they that he possessed the constitutional power, which, in four ought not now to be removed.
months afterwards, he so rigidly executed, in removing Mr. L. said it was under a knowledge of the above the settlers from their improvements. He would read opinions and conduct of the President that he felt him- the letter, and ask the friends of the President to recon. self justified in offering no objection to the Creek treaty, cile it with his acis. and in believing that no measure of injustice to the set
DEPARTMENT OF WAR, tlers, or opposition to the State laws, would be attempt.
Office of Indian Affairs, May 1st, 1833. ed by the President, in the execution of that treaty. He Sır: In consequence of an application from several of could not, judging of the future by the past, have expect the Cherokees, I have been instructed by the Secretary ed that General Jackson would so soon have attempted of War to call your attention to my letter to you of March to expel the settlers by military force, and to substitute 15th, 1833, and to say to you that the provisions of the his own military power for the laws of the State. letter relate solely to those portions of the Cherokees
Mr. J.. said, so fully was the Legislature of Alabama within the States of Tennessee and North Carolina, and convinced that the President would not so far violate his over which the laws of those States have not been exknown opinions as to attempt a removal of the settlers tended. The views of the President upon this subject from the ceded lands, that, at the session after the treaty, have been too often and too publicly expressed, to leave the country was fully organized and laid off into counties, any doubt of the course which, in his opinion, ought to be judicial officers were appointed, and elections were or- pursued. And this explanation would have been considdered and held for sheriffs, clerks, &c. The people, ered unnecessary, had not some of the Cherokees intimatunder similar convictions, moved into the country in greated different views. The President yet thinks, as he has numbers, most of them settling on and improving the always thought, the Executive has no constitutional right public lands; some, however, occupied Indian improve to apply military force to remove persons from any part ments by a contract with the Indian owners, either to pay of the State of Georgia or Alabama. rent for such improvements, or to buy the reservations to I am, sir, &c.
ELBERT HERRING. be located on them. The Legislature, at a previous ses Col. H. MOXTGOMERY. sion, had, by joint resolutions, approved by the Governor, asserted the right, on the part of the people, to occupy Ilere, Mr. L. said, was the rule laid down by the Pres. the unimproved lands in the Creek country, in the same ident himself for the government of his own conduct. manner as they were in the daily babit of occupying other Here was the measure of his constitutional powers; and
vet, sir, in the teeth of this unequivocal avowal, has he population in that country; a large portion of them were thought proper to order a “military force” to eject those his constituents; he knew them well, and was proud of who have settled the country, not only under the sanction such constituents. Whether in general intelligence, in of the State Legislature, but under the express approba- upright bearing of character, in patriotic principles, or in tion of the Secretary of War, and under his promise that a willing obedience to the laws, he would assert that they they should not be removed. Yes, sir, Mr. L. repeated, yielded to the citizens of no portion of the southern counit was under the double sanction of both the State Legis- try. He felt it his duty to say this much in their defence, lature and of the administration, that the number of the because they had been denounced as “intruders,” and settlers in the Creek country had increased, at the date were to be treated as such. He appealed to his two colof the order for their removal, as it had been estimated, leagues near him, Messrs. CLAY and MARDIS, to sustain to near thirty thousand souls. A more unexpected, a him in the character he had given of these people. more relentless, and a more unjust order, never was Mr. L. said he would here allude to a more extraorpenned by the hand of power. The settlers were not dinary, and, as it appeared to him, a more outrageous only to be treated as “intruders,” and expelled from assumption of power, than any he had yet noticed in this their homes, but the State laws and Government already warfare on the rights of Alabama. A marshal, at the established were to be abolished, by the indiscriminate head of a band of armed soldiers, has been sent through removal of every judicial officer in eight counties. Mili- the country, invested by the President with the sole powtary power was to usurp the tribunals of justice; and that, er of removing, upon ex parte testimony, or no testimony too, by the order of an Executive who had so recently, at all, whoever he may have thought to have intruded on and so unequivocally, asserted the rights of the States to an Indian improvement. Under the act of 1807, which extend and enforce their laws over the Indian tribes with was passed for the protection of the public lands, the in their limits.
marshal has been clothed, not with the power intended Sir, said Mr. L., it would be a matter of curious inquiry by the statute, of removing intruders from public lands, to investigate the causes of this sudden change of policy, but of determining between an Indian and a white man, Why had the President so unexpectedly changed his both citizens of Alabama, and subject to her laws, whethopinions? What was there to warrant such a change, er the white man has trespassed on the improvements of alter the promise of the Secretary of War to the settlers the Indian; and, if so, in the opinion of the marshal, a that they should remain on their improvements "till the military force stands ready to execute his sentence at the selections were made.” It would not be pretended that point of the bayonet. Are not these judicial questions the public lands were suffering any deterioration of value for the decision of the courts of Alabama, and for them by the improvements placed on them; nor could it be alone! If an Indian commits a trespass on a white man, urged that it was the interest of the Indians that the set- redress can only be obtained through an appeal to the tlers should be removed. On the contrary, as the Indians judicial tribunals: if a white man commits a similar tresbad reservations to sell, it was their interest not to drive pass on an Indian, the marshal and the military stand off competitors in the purchase of such reservations. ready to avenge his private wrong. The President, imRemove the settlers from the country, and who does not patient of the law's delay, has set aside the authority of see that the price of reservations would instantly fall? our courts, by despatching a deputy marshal to judge Who, then, were to be benefited by the expulsion of the what improvements were made by Indians, and what by settlers from the country? No one, but a few Govern. whites; whether such improvements were occupied by ment pets and favorites, who expected to be suffered to contract or not; and, under the exclusive decision of this remain in the country, in the character of Government executive agent, removals have been made, in many agents, and who, when the settlers were removed, expect. cases productive of total ruin, and in one of death. The ed to enjoy a monopoly in the purchase of Indian reser-account given of this matter, by the marshal himself, vations. Mr. L. said he mentioned no names, for he proves it to have been one of the most atrocious acts of knew them not, and cared not to know them; he spoke despotic power ever perpetrated in a country claiming to only of a class of men, and of the only class in the com- be free. Mr. L. said he was sorry he did not have it in munity whose interests could have been promoted by the his power to procure Mr. Austill's letter to the Secretary removal of the settlers. He believed that it was through of War, giving an account of this transaction, that lie the exertions and representations of these men that the might read it to the House. He was, however, in possesPresident had been induced to adopt so outrageous a sion of an extract from that letter, which he would read: course as he liad. There could be no doubt that gross “ We had not left the place one mile, before be (meanslanders and misrepresentations of the settlers had reach- ing Hardiman Owens,' the man murdered) returned, ed the ear of the Executive from this source.
swearing he would kill me on sight, and some half dozen Mr. L. said he was aware that an apology for the Indians. I have, therefore, directed the Indians to take course of the Executive had been sought in the com- him, if possible; and if he returned among them, to shoot plaints of the Indians themselves of the intrusion of the him down. I have sent another detachment after him, whites. Such complaints were easily got up by designing who are now absent.” Such, M:. L. said, were the men. He believed, however, that the great body of the orders of the marshal, which preceded this military Indians had made no complaint, but were, on the contra-murder; for it could be called nothing else. Even the ry, perfectly satisfied with their new neighbors. He said forms of law were dispensed with; the trial by jury, the he would venture the assertion, that no two people, dis- birthright of every American, as well as Englishman, was tinct in language, color, and all the habits of social and set at naught; and a free citizen, under the protection of domestic life, had ever lived together in more harmony. the laws of Alabama, within her territory and the jurisIndividual cases of oppression there doubtless were, but diction of her courts, meets his death at the hands of a for these the corrective was to be found in an appeal to United States deputy marshal and a band of hireling the State laws. These were ample for the protection of soldiery, the rights of the Indians, and public sentiment would Mr. L. said he would not go into the details of this enforce them rigidly for that purpose. Public opinion transaction, to controvert a statement made in the report and public sympathy would, in any portion of the Creek of the superintendent of Indian affairs, which completely country', come in aid of an Indian who had suffered op- justifies the conduct of the deputy marshal. With the pression from a white man.
deputy marshal Mr. L. had nothing to do. His case In making these assertions, Mr. L. said that he spoke could be decided only by a judicial tribunal. His (Mr. from his own know!: 'ge of the character of the white Li's) business was with the President, under whose order
JAN. 6, 1834. ]
Alabama and the Executive of the United States.
(H. OF R.
the act was done. He (Mr. L.) would hold the admin- which is not only a violation of the constitution, but the istration responsible for the deputy marshal's conduct, very best definition of the most absolute tyranny. until that conduct was disavowed. The Secretary of Sir, by this act, the marshal, though a subordinate minWar had already justified the act of the deputy marshal, isterial officer, was more absolute than the Autocrat of and upon the hands of the Executive Government let Russia. He had, in fact, more power than all the departthe blood and responsibility of that transaction rest. ments of the Government together. Congress itself had
Mr. L. said he was desirous of submitting it to the no power to take an atom of property from the humblest solemn decision of that House, whether such outrages citizen, without judicial investigation. No free Governwere to be tolerated in a free country. Were they to be ment could do so, because it was the very essence of dessanctioned by the representatives of a free people? Were potism. Blackstone informs us " that it was a part of our army and navy to be maintained at the people's ex- the liberties of England that the King may not enter upon pense, for such purposes as this? Instead of being em- or seize any man's possessions, upon bare surmise, withployed for defence against a foreign foe, were they to be out the intervention of a jury." The constitution of this kept as the bull-dogs of the Executive, to let blood wher country makes the trial by jury a part of the liberties of ever he shall point his finger? If so, Mr. L. avowed he the people. It is the great protection of property, as was ready to vote for their disbandonment at once. They well as of life and liberty, against not only individuals, would soon become odious in the eyes of freemen, by but the Government itself. The act of 1807 conflicted being so often used as the instruments of executive with the inviolability of private property and the trial by vengeance.
jury, and was therefore unconstitutional. It conferred It was high sime, Mr. L. thought, if the States were an arbitrary power on the President to expel the citizen to be ruled by military power, that it should be known from his possessions, without even the semblance of legal It should no longer be disguised under false semblances. investigation, and was therefore tyrannical, and ought to Let them know and prepare for the worst. Was there be repealed. not already a military government in Alabania? For un Mr. L. said he thought he had a right to call on those der what other name could the prostration of the civil who were members of this House in 1830, and voted for jurisdiction of the country, by military power, be desig- what was then called the famous Indian bill, to aid him nated? By the constitution, the Federal Government can in repealing the act of 1807. exercise exclusive jurisdiction within the limits of a State What was the principle settled by that great question? only for certain specified purposes, and in specified It was, that each State of this Union was entitled to jurisplaces. But, sir, has not the Federal Executive, with the diction throughout its entire limits, and over the Indian United States marshal and soldiery, usurped our exclusive tribes within those limits; that the act of 1802, regulating jurisdiction over so much of the Creek country as was trade and intercourse with the Indian tribes, and all treawithin the limits of Alabama?
ties with those tribes which conflicted with this right of Mr. L. said that, under that provision of the constitu- jurisdiction, were unconstitutional, and could not be ention which guaranties to each State of this Union a repub-forced within the limits of a State. Mr. L. said he thought lican form of government, he felt himself authorized to no one who would examine the act of 1807 could fail to call for the interposition of this House in behalf of a be satisfied that it was still more repugnant to the jurisdicportion of the people he represented. He would put it tional rights of the States than the act of 1802. He beto the judgment of every man present to say whether the lieved these two acts had a common origin, and never usurpation by military force of all power in one individual were intended to operate within the limits of a State. was not, instead of a republican Government, a despotism. The act of 1807, like the act of 1802, was passed at a Sir, has not the marshal, at this time, under the orders of time when our public lands, like our Indian relations, the President, all power, whether executive, legislative, constituted an exterior interest - when these lands were or judicial? Where was the law which was !o govern in out of the limits of the several States, and unprotected by the Creek, country? In the mouth of the marshal. Who the State laws; and, in the absence of State authority, so were to execute it? A hired soldiery, supported by the strong a measure might then have been necessary to prolabor of the people.
tect the public lands against the force and fraud of large Mr. L. contended that the act of 1807, the ground companies of land speculators. That necessity now no work of that superstructure of executive power which longer existed. had been reared up by the Creek treaty, was a gross vio. Mr. L. concluded by saying that, having submitted lation of the constitution. It was not the first time its these remarks for the purpose of putting the House in constitutionality had been called into question. It would possession of the material features of this case, he would be recollected ihat, under this law, Mr. Jefferson, through not go further into the argument. He wished it underthe marshal of Louisiana, removed Mr. Livingston from stood, however, that he desired to meet this question the celebrated batture, near New Orleans, on the ground fully and fairly, by an investigation before a committee of that the batture was the property of the United States. this House. He hoped it would not be refused. He This act of Mr. Jefferson's, although vindicated with great held himself ready there, or elsewhere, to vindicate and ability, and sustained by his well-deserved popularity, at justify the conduct of the great body of the settlers in the this day can find but few advocates. Public opinion has Creek country against the charges which might be set the seal of reprobation on Mr. Jefferson's order, and brought against them from any source, however respectthe law by which it was enforced; and some of the most able. He wished to meet such charges face to face. He distinguished jurists of the country have pronounced it had felt it his duty that day to come forward in the name unconstitutional.
of a portion of his constituents, and to demand a restoraSir, said Mr. L., this act gives to the President the tion of their rights as American citizens—the restoration power, through a marshal and a military force, to remove of the trial by jury—the restoration of their domestic intruders from the lands of the United States. What laws and, lastly, the restoration of a republican form of constitutes an intruder under the law, is a judicial ques- government. Until these rights and privileges are re. tion; and whether lands belong to the United States, is stored, let not the people be insulted hy being called free, also a judicial question. The constitution declares that for the State of Alabama sovereign. “the judicial power of the United States shall be vested Mr. STEWART said he rose, not to prolong, but to in one Supreme Court, and such inferior courts as Con terminate at the threshold this discussion, if possible. gress may, from time to time, ordain and establish;” and He deemed it not only premature, but it might have a yet, by this act, judicial power is vested in the Executive, very injurious effect upon the arrangements now making
H. OF R.]
Alabama and the Executive of the United States.
(Jax. 6, 1834.
for the adjustment of this important controversy. Besides, been passed. These have held out invitations and encourthere were exciting topics enough before the House, with- agement to settlers to occupy the public lands. The out adding this to the number. The House had suspend. Secretary of War, in a letter to part of the delegation ed the rule to entertain the motion of the gentleman from from Alabama, has certainly not discouraged those settleAlabama, (Mr. Lewis,) on his stating that it was necessary ments, if he has not actually encouraged them. (Note 1, to prevent immediate civil war-to arrest an impending Art. 5.) The treaty itself, made with the Creeks, procollision between the troops of the United States and tects those persons who have made their own improvethose of Alabama. After this statement, he had looked ments, and have not driven out the Indians. The treaty for the annunciation of some new and important intelli- secures reservations to the Indians, and gives to them the gence from that quarter, but he had looked in vain. Not right of sale, subject to the approval of the President. a word-not a new fact or circumstance had been stated The construction which has heretofore been put on that -no collision, no difficulty had occurred. None would treaty, both by the General Government and individuals, occur, in his opinion, unless the people of Alabama were has been the same. Individuals have believed that, by roused and excited to acts of violence and resistance by the treaty, (Note 2, Art. 3,) the Indians could sell as well such speeches as that just made by the gentleman. if before as after the locations, leaving to the President the any thing could produce collision, it would be such ap- right to prescribe the manner in which the contracts shall peals as this to the passions of the people.
be made. It comes within my own knowledge that this The gentleman cries peace, while he throws a firebrand opinion was known to the Government. Letters have into the midst of the scene of excitement; he is hting been written, to obtain information from the War Depart. up by his speech the very flame he seems so anxious to ment in regard to those purchases; and on one occasion, extinguish. He (Mr. S.) had therefore risen to move to when the inquiry was made whether the Government lay the resolution on the table, and thus put an end at desired to purchase the Indian reservations, the reply once to this discussion. He saw no occasion whatever for was, that the Government had no such wish; that there it; it could do no good, it might do much harm; he had was individual competition sufficient to enable the Indians no doubt the whole difficulty would be amicably and satis- to get a fair price for their reservations, and remove; and factorily adjusted without our interference; nothing had that was all the Government desired. Was not this en. been stated to show that it was not now approaching such couragement to individuals to go there, make purchases a result. Why, then, call on this House to interpose? None of the Indians, and settle? Are these persons to be conof the parties had desired it. But it was not his purpose sidered intruders, when complaints may be made against to discuss the subject, but to submit a motion to lay the them by any Indian? It is well known, to some at least, resolution on the iable. Should it prevail, the resolution that some Indians may be got to complain against any could still be taken up hereafter, if found necessary. person settled among them, more especially those who The argument so earnestly urged, that the selections have gone there since the treaty. Those persons who could not be completed by the 15th of this month, and were there before that time are the pets of the agent that therefore Congress must act, bad no weight wbat, and the military officers, and they can have any man who ever. This time was fixed by the Executive, and he has settled there since the treaty complained against by could extend it, if found necessary to do so. He there- some Indian, and turned out of possession of his improvefore moved to lay the resolution on the table.
ments, as an intruder, by military force. Why was Owens At the request of Mr. LEWIS, however, Mr. S. with murdered? It almost comes within my own knowledge, drew his motion; when
and I have no doubt of the fact, that he had rented all Mr. LEWIS made some further remarks to show the his lands, and was in possession of them by the consent of necessity of prompt action on the subject by Congress. the Indians, who had a right to occupy them, and had Ile had at first determined to wait until his Legislature paid them the whole rent, except one old Indian woman, should have acted; but the time would not now allow of who was afraid to receive her pay. Why was he murderfurther delay. He pledged himself that the fullest in- ed, I ask! Some “ Indian,” who had no right to the imdemnification should be provided for the Indians. The provements of which he was in possession, made comquestion on the resolution was a question of peace or war. plaint, and he was to be turned out, and he was murdered;
Mr. JONES then rose, and addressed the House as and, in less than four hours, a white man was put in pos. follows:
session of his premises. Sir, I live within a few miles of Mr. Speaker, I rise to add a few remarks to those of this scene of outrage and murder, and I have nu doubt of the gentleman from Alabama, (Mr. Lewis,) upon what the facts. has fallen from the gentleman from Pennsylvania. He Owens was living on the road, keeping a sort of public says no cause has been shown, and not a single fact stated, house; had a crop growing, which promised to produce which calls for the action of this House; and asks for a three thousand bushels of corn, and his place was desir: postponement until after the 15th of this month. And able. He therefore was an intruder--the Indians" why should we delay until that time? Then, the military wished him removed. He was murdered, and his place is will be let loose; then, the settlers are to be driven out; now in possession, not of an Indian, but a white man. then, the mischief is to be done, which our timely action Other places were then occupied by those persons who may arrest.
were living in that country before, and at the time the is it no cause that persons invited by the Secretary of treaty was made, and who were only to be permitted to War to settle in that country are now to be driven out? remain until their crops were gathered. They are the Is it no cause that the country has been laid off into eight favorites of the agent and the officers. No " Indian” bas or ten counties; the jurisdiction of the State of Alabama complained against them--they are not intruders--they extended over the country; and all the necessary officers are not to be removed. have been appointed? Is it no cause that the civil and When a man's life and his property are held at the criminal laws of the State are to be disregarded, and a mercy of a deputy marshal, and subordinate military of military tribunal is to be established, before which all ficers—when the voice of the law is silenced by the roll of offences are to be tried—all rights to be investigated? If the drum and the roar ofguns-is it not time for the interthere be no cause in this country, which we yet consider position of this House? free, for the action and intervention of this House, I know Mr. Speaker, I have seen the instructions (Nole 3-] not what can be.
which have been sent from the Department of War to the It has been correctly stated by the gentleman from agents for locating the Indian reservations, and certifying Alabama, that, in many cases, pre-emption laws have contracts made with them for those reservations. To the
Jan. 6, 1834.)
Alabama and the Executive of the United States.
(H. OF R.
instructions, as originally given, no objection would be the absolute right of sale. To sell, they must either have made, and, under them, there would be no use for a mil- the approval of the President, or live on the land five itary force. But, out of the supplemental instructions years. (See articles 3d and 4th of the treaty, note 5.] given at the suggestion of the agent, who has deceived By the 5th article of that treaty, the President is to rethe President, or has been imposed upon himself, by de- move intruders from the reservations for five years. This signing men around him, who have wound themselves stipulation is contrary to the constitution, contrary to the into his confidence, will grow mischief and difficulties, sovereign rights of a State; and Congress could not by and, most probably, such troubles as will cause the shed- law, nor could the President and Senate by a treaty, give ding of much blood. By them, the agents are particularly to the President any such power. The public documents instructed not to certify any contract, or allow any pay- to which I have before referred will fully sustain me in ments which have been made before the location of the this position. reservation. The treaty was made in March, 1832. Ever When the country is surveyed, and the locations made, since that time, persons have been going into that coun- they cease to be public lands; and the remedy given to try making contracts with the Indians, and increasing the the public cannot be exercised in favor of individuals: improvements, which must fall within the locations. The they must resort to the laws of the State of Alabama for treaty has fixed where the reservations of many Indians protection. This principle is not new. The Legislature must be located. (Note 4.] The second and sixth arti- of New York, after deliberate consideration, and consult. cles of that treaty show they must include the improve-ation with the judges, declared “ that the sole and exments of the Indians. No Indian can have a reservation clusive cognizance of all crimes and offences committed including the improvements of another Indian. Although a within that State, except only such crimes and offences as white man has fairly purchased, for a bona fide considera. are cognizable in the courts claiming jurisdiction under tion, the very reservation which belongs to the Indian the constitution and laws of the United States, belong from whom he purchased--although he may be able to of right to the courts holden under the constitution and prove his contract and the payment of the money-al- laws thereof, as a necessary attribute of sovereignty.” though the Indian may be willing to admit the contract, The Committee on Indian Affairs, in their report (1829) and the payment of part or all of the money, and is willing to the House on that declaration of the State of New to fulfil it--although the white man may have long since York, "recognise only the general principle, that terribeen put in possession, and have improved the place to tory and jurisdiction, considered in reference to a State, double its value at the time of sale, by clearing more land are inseparable; that one is a necessary incident to the and extending the improvements, his contract must not other; and that, as a State cannot exist without territory, be certified, and his payments must not be allowed. I the limits of that territory are, at the same time, the limits speak what I know, for I have been furnished with a of its jurisdiction.” copy of these instructions by the Secretary of War. Sir, Again, they say, “The superior right of a State to the there are from twenty-five to thirty thousand people set control of every inhabitant within its territorial limits, tled in that country. Will they must they be placed at whether citizen or Indian, must prevail over every other the mercy of a deputy marshal and military officers? And inferior or inconsistent claim. The lands which constiwill they tamely submit? They are freemen and the sons tute the object of the guaranty of the United States will of freemen. Is this no cause for the intervention of this remain to be enjoyed by them; all the States within the House?
limits of which any portion of those tribes may continue The State of Alabama, in 1829, extended her jurisdic. to reside, when they shall come to consider of a permation and laws over all that country, and over all the Indi- nent policy in relation to them, will, no doubt, model it ans within her limits. The public documents within the by a standard, which the enlightened humanity of the age archives of this House will show that, in her claim to ju- will approve as appropriate and just.”. Let me pause risdiction, she was sustained by the Secretary of War, by here to inquire-will not the claim of the military be inthe President, and by the opinion of Congress, who made ferior? Will not the claim of the United States be incona large appropriation, and placed it at the disposal of the sistent with the superior right of the State to the control President, for the purpose of relieving the Government of every inbabitant within her territorial limits? from these conflicts of jurisdiction, and inducing this un The Secretary of War, in a letter of instructions to fortunate people to emigrate beyond the Mississippi. The Generals Carroll and Coffee, says: "A crisis in our Indiorders from the Secretary of War require the persons in an affairs has arrived. Strong indications are seen of this, possession of the Indian reservations to be removed by in the circumstance of the Legislatures of Georgia and force-yes, sir-in a country of laws-by military force! Alabama extending their laws over the Indians within I say, sir, that military force cannot legally be used their respective limits. Those acts, it is reasonable to against those people.
presume, will be followed by the other States interested The opinion of the Attorney General, given in regard in the portions of their soil in the occupancy of the Indito these lands, considers them as public lands. I cannot ans. In the right to exercise such jurisdiction, the Exagree with that opinion, when the lands lie within the ecutive fully concurs." And again, in a letter to Gov. limits of a State, and over which she has extended her ernor Forsyth, of Georgia: “ The principle asserted by jurisdiction.
your Legislature, of extending the laws of the State The act of 1807 may be constitutionally applied to pub- throughout her own territorial limits
, appeared in itself lic lands in a Territory, but cannot authorize the resort to so reasonable and well founded, that it was impossible, military tribunals to try, and military force to drive, those under all the circumstances presented, to doubt as to the persons who may be considered intruders by the military propriety of the measure. Therefore, when this question officers from the possession of lands lying within the ju- arose, the Cherokees were given distinctly to understand risdictional limits of a State, where her laws, both civil that it was not within the competency or power of the and criminal, are in full force. But, without farther con-Executive to call in question the right of Georgia to astesting this opinion, as regards public lands, it is not pre- sert her own authority within her own limits." Let us tended by him that the act of 1807 can have any opera- now hear the President on the same subject. Though tion in regard to individuals or individual possessions, the Secretary of War has spoken by authority, it may be whether white or red; and, by the terms of the treaty, best to hear the President himself. In his annual mesthose reservations become individual property as soon as sage (1829) he says, ". The Indians should be distinctly the locations are made. By the treaty, the indians bave informed, if they remain within the limits of the States, all the rights which belong to a fee-simple title, except they must be subject to their laws. In return for their