Congressional bill to remove Indians

Government Document

Transcription of Primary Source

[ Rep. No. 227.]

21st Congress Ho. of Reps. 1st Session


February 24, 1830

Accompanied by a Bill (No.287) which was twice reas, and committed to a Committee of the Whole House on the State of the Union-and then thousand copies of Report and Bill ordered to be printed.

Mr. Bell, from the Committee on Indian Affairs, made the following


The committee have been duly impressed with the delicacy and importance of many of the questions presented by the subject referred to them. They have felt, that the responsibility of their situation was increased by the consideration that, besides great interest of an ordinary kind, many entertain the opinion that the honor and character of the country are, also, in an eminent manner, place in the keeping of Congress, at this juncture. They have, therefore, applied as much of their time as their other duties permitted, to the examination of such facts and principles, connected with the subject, as appeared to them to deserve most attention.

The causes which have led to those embarrassments in the condition of the Southern tribes of Indians, which are understood to require the attention of the Government, will be noticed in the general views hereafter presented; but the preliminary remark may be indulged, that the questions which have grown out of those embarrassments, appear to involve the interpretation of various compacts, some of which are supposed to be conflicting, between the Federal Government and the Indian tribes, besides a variety of other considerations of a less inflexible character. Regarding the nature of the questions presented, and the rights and interest to be affect by their decision, some general rules of interpretation suggest themselves, which, by their reasonableness, and the sanction they have received in practice, claim the rank of fixed principles, in settling the duties and obligations of all political societies. The committee suppose they will not be required to show, by any illustration or reference to authorities, that the faith of a Government should, in all cases, be inviolably observed, and that, in attending to that in-

{2} {Rep. No. 227}

dispensable duty, all its obligations should be considered; that all just and reasonable expectations, besides what may be expressly stipulated in a compact, should be allowed; and that the obligation is equal, whether a treaty or compact made be made with a foreign State, with dependant or subject communities, or with individuals, citizens, or aliens. To these may be added, as applicable to the present inquiry, the following maxims and principles, which are equally sustained by reason and authority: 1st Antecedent engagements or compacts are entitled to precedence in the observance of them. 2d. Stipulations, impossible to be complied with, either for want of power or because they involved a violation of the rights of third persons or States, if not voluntarily waived, are to be compensated. 3d. The first duty of every Government is to protect the rights and promote the prosperity of its own members; yet, the rights and interest of others, of whatever character or condition, are not be wantonly restricted, no in any case wholly disregarded.

The application of these principles to the conflicting claims of the Southern Indians, and the States within whose boundaries they are located, the Government has, heretofore, sought to evade by encouraging the emigration of the Indians, and making such provision for their permanent residence, West of the Mississippi, as, in the opinion of many of our statesmen, most distinguished for their justice and benevolence, as well as by their talents and experience, promised to increase their happiness, and to afford the best prospect of perpetuating their race. The execution of this policy has been interrupted by causes which threaten to delay it for some time, if not to defeat it altogether. The most active and extraordinary means have been employed to misrepresent the intentions of the Government, on the one hand, and the condition of the Indians on the other. The vivid representations of the progress of Indian civilization, which have been so industriously circulated by the party among themselves opposed to emigration and by their agents, have had the effect of engaging the sympathies, and exciting the zeal, of many benevolent individuals and societies, who have manifested scarcely les talents than perseverance in resisting the views of the Government. Whether those who have been this employed, can claim to have been the most judicious friends of the Indians, remains to be tested by time. The effect of these indications of favor and protection has been to encourage them in the most extravagant pretensions. They have been taught to have new views of their rights. The Cherokees have decreed the integrity of their territory, and claimed to be as sovereign within their limits, as the States are in theirs. They have actually asserted such attributes of sovereignty, as, if indulged, must subvert the influence, and effect a radical change of the policy and interested of the Government, in relation to their affairs. Some of the States, within whose limits those tribes are situated, have determined, by the exercise of their rights of jurisdiction within their territorial limits, to repress, while it may be done with the least inconvenience, a spirit which they foresee, may, in time produce the most serious mischiefs. This exercise of authority by the States has been remonstrated against by those who control the affairs of the Indians, and the application has been made to the Federal Government to interpose its authority in defence of their claim to sovereignty. As the course pursued by the President, in regard to this application, appears to the committee to have been founded upon a correct construction of the duties and powers of the Federal Government, they would not have considered it necessary to extend their inquiries beyond that part of the message, which recom

{3} {Rep. No. 227}

mends the policy of giving further encouragement to the emigration of the Indians, but for the opposite views contained in several memorials, which have also been referred to them. A due respect for the opinions of a number of respectable citizens in various sections of the Union, requires that some notice should be taken of the grounds which have been assumed in support of the pretensions of the Indians, and of the obstacles which, in the opinion of the committee, lie in the way of their indulgence by the Government.

It is not propose to examine the various points which will readily suggest themselves to the mind of every person, as material to be adverted to, in any regular order. The Indians can be admitted to have no rights inconsistent with the rights of the States which they inhabit; and the States, on the other hand, can have no rights which necessarily come in competition with any admitted right of the Indians. Whatever views, therefore, which go to shew a right in the Indians, must, at the same time, prove a limitation upon State authority, so far as its exercise would defeat that right.

Principles of natural law, and abstract justice, are appealed to by some, to show that the Indian tribes within the territorial limits of the States, ought still to be regarded as the owners of the absolute property in the soil they occupy, and that they are to be regarded as independent communities, having all the attributes of sovereignty, except such as they have voluntarily surrendered. All civilized nations acknowledge the validity of the principles appealed to, according to their understanding of what they are, and profess to be governed by them in their intercourse with the rest of mankind. That the interpretation of those principles, as developed in the practice of nations, should vary with the progress of general science, is natural, and agreeable to the truth of history. What, at one period, was held to be just and reasonable, in succeeding age is condemned as cruel and oppressive. The errors of society, committed in the early stages of it, generally admit of correction, when detected by more enlarged and just views; but it is not always so. It often happens, that they become so closely connected with the very foundations of society itself, that any attempt to eradicate them would involve a dissolution of its bonds, and the destruction of all order- an extremity, forbidden by the very principles, and the recognition of which pointed to the original mischief.

It is not, therefore, so important to attempt a definition of the nature and obligation of any abstract principles, about which there will always be conflicting opinions, as to state, with as much precision and certainty as possible, the interpretation of those principles, which are to be found in the maxims and practices of those civilizes societies which settled this part of America, and of those which have sprung up, in relation to Indian rights. The proofs of what that interpretation has been, are to be found in the charters, laws, constitutions and general policy, of the various governments, Colonial State, and Federal; and to these, it would see,, we must look for the only admissible tests of the extent of Indian rights on the one hand, and of the rights and powers of the States and of the Federal Government on the other. The nature and condition of things, as they actually exist, must be taken as the groundwork of the future policy and action of the Government upon this subject, and not what, in our opinions, they should have been.

The foundations of the States which constitute this Confederacy were laid by Christian and civilized nations, who were instructed or misled, as to the nature of their duties, by the precepts and examples contained in the volume which they acknowledged as the basis of their religious rites and

{4} {Rep. No. 227}

creed. To go forth, to subdue and replenish the earth, were received as diving commands, or relied on as plausible pretexts to cover mercenary enterprises, by the governments which gave authority, and the adventurers who first discovered and took possession of the new world. Whether they were right or wrong in their construction of the sacred text, or whether their conduct can, in every respect, be reconciled with their professed objects or not, it is certain that possession, actual or constructive, of the entire habitable portion of this continent, was taken by the nations of Europe, divided out, and held originally by the right of discovery as between themselves, and b the rights of discovery and conquest as against the aboriginal inhabitants. In the Spanish provinces, the Indians became the property of the grantee of the district of country which they inhabited; and this oppression was continued for a considerable period. Although the practice of the Crown of England was not marked by an equal disregard of the rights of personal liberty in the Indians, yet their pretensions to be the owners of any portion of the soil where wholly disregarded. The English colonies and plantations are known to have been settled and governed under various characters, commissions, and instructions, issued by the Crown to individuals and companies; some of which contained grants of extensive districts, to be held in absolute property, accompanied by certain political powers and privileges; while others contained grants and political privileges only. This difference in the nature and extent of the rights granted, gave rise to the distinction between proprietary and regal governments among colonies. Although the paramount sovereignty of the mother country was reserved in all the charters, yet as, in those which included a grant of absolute property in the soil, there was no reservation of any part of it to the natives, they were left to be disposed of as proprietors thought proper. It is matter of history, that the Crown, having the power, under such restrictions as the spirit of the English institution imposed, to regulate the affairs of those colonies which were originally, and of others which afterwards came under its control, by the forfeiture or surrender of their original charters, permitted the Indians, in all of them, to be governed or otherwise disposed of, by the colonial authorities, without any interference on its part, until within a very short period before the Revolution. This it happened, that in all colonies, the maxims and conduct adopted and pursued in relation to the Indians, were substantially the same. Humanity, and the religious feeling of the early adventurers forbade that they should be thrust with violence out of the land. The trade with the great tribes of the interior were profitable, and the peculiar mode of warfare practiced by the Indians, soon brought the colonists to perceive the advantage of cultivating peaceable relations with all of them. This interest, however, was found, in the progress of the new societies, to be opposed to another great interest; which was, that their resources should be increased, and the demands of the cultivator supplied, by appropriating the wild land within their limits as speedily as possible. The difficulty that was felt in reconciling these two interests, lies at the foundation of the policy which was adopted in relation to the Indians; and the expedients which were resorted to, in order to effect an object so important, constitute the evidence of what the policy of the country was, from that time up to the formation of the Constitution. One of those expedients was, to appear to do nothing, which concerned the Indians, either in the appropriation of their hunting grounds, or in controlling their conduct, without their consent. It is not intended to be asserted that

{5} {Rep. No. 227}

this device was employed by all the colonies, from their first settlement. It came, however, to be a general principle of action, upon this subject, at some period or other of their profess, and was adhered to, when found practicable and in any degree consistent with their interests; but, in several instances some of which occurred at an early, and others at a later period, the public interests were believed to require departure from it; but in all the acts, first of the colonies, and afterwards y the States, the fundamental principle, that the Indians had no rights, by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either expressly or by implication.

The rigor of the rule of their exclusion from those rights, has been mitigated, in practice, in conformity with the doctrines of those writers upon natural law, who, while they admit the superior right of agriculturists over the claims of savage tribes, in the appropriation of wild lands, yet, upon principle that the earth was intended to be a provision for all mankind, assign to them such portion, as, when subdued by the arts of the husbandman, may be sufficient for their subsistence. To the operation of this rule of natural law may be traced all those small reservations to the Indian tribes within the limits of most of the old States. The General Court of Massachusetts fell short of coming up to the principle of natural law, but went beyond the general maxims of the period, when in 1633, it declared, “that the Indians had the best right to such lands as they had actually subdued and improved.” That Government, at the same time, asserted its right to all the rest of the lands within its character, and actually parceled them out b grant among the white inhabitants, leaving to them the discretionary duty of conciliating the Indians by purchasing their title. The General Assembly of Virginia asserted the unrestricted right of a conqueror, and, at the same time, conceded what the principles of natural law were supposed to require, when in 1658, it enacted “that, for the future, no lands should be patented until fifty acres had been first set apart to each warrior, or head of a family belonging to any tribe of Indians in the neighborhood.”

The recognition of this principle by the Federal Government may be seen, at this day, in those small reservations which are made to individual Indians, or to the tribe itself, upon the relinquishment of the body of their lands. These reservations are made to individual Indians, or to the tribe itself, upon the relinquishment of the body of their lands. These reservations are made in deference to the principles of humanity, and becasuse it had been found expedient to the interests of the Government making them. No respectable jurist has ever gravely contended, that the right of the Indians to hold their reserved lands, could be supported in the courts of the country, upon any other ground that the grant or permission of the sovereignty or State in which such lands lie. The prince of Massachusetts Bay, besides the subdued lands already mentioned, during the early period of its history, granted other lands to various friendly tribes of Indians. Gookin, the great protector and friend of the Indians, about the time these grants were made, was asked, why he thought it was necessary to procure a grant from the General Court for such lands as the Indians needed, seeing that “they were the original lords of the soil?” He replied, that “the English claim right to the land by patent from their King.” No title to lands, that has ever been examined in the courts of the States, or of the Unites States, it is believed, has been admitted to depend upon some Indian deed of relinquishment, except in those cases where, for some meritorious service, grants have been made to individual Indians to hold in fee-simple.

{6} {Rep. No. 227}

Some of the colonies found it necessary, for the preservation of peace upon their frontiers, to establish a general Indian boundary, beyond which the white inhabitants were forbidden to settle, until authorized by law. These lines were generally in advance of the settlements. They were also commonly established in conformity with the stipulations made with the Indians in conferences or treaties. That these Indian boundaries were regarded as temporary, and implied no abandonment of the principle upon which the country was settled, is clear from many circumstances attending them. In some cases, the laws by which these lines were established did not forbid the appropriation of the lands embraced in them by patent. Patents, in two or three of the colonies or States, did actually issue under such circumstances; yet, these acts, implying, as they do, a most act of ownership and sovereignty, have been solemnly adjudged valid by the judicial tribunals of the country most distinguished for their learning. But the most decisive evidence in which these reservations have always been viewed, in regard to the question of title, is to be found in the fact, that the Crown or the proprietors of Provinces, before the Revolution, and the States, after that event, succeeding as they did to the sovereignty over all the lands within the limits of their respective charters, have asserted the exclusive right, in themselves, to extinguish the title to lands reserved to the Indians, until the Constitution was adopted. Since that time, the Federal Government has acted upon the same principle, in regard to lands belonging to the effect it has had in practice, be examined, it will be found to be a complete recognition of the original rule which nations of Europe acted upon the same principle, in regard to lands belonging to the Government. If the principle upon which this is right is asserted, and the effect it has had in practice, be examined, it will be found to be a complete recognition of the original rule which the nations of Europe acted upon in the first partition and settlement of the country. Some of the States have incorporated this right in their constitutions, as a principle of primary importance. Laws have been passed in all the rest, in which there Indian reservations, granted by the States, declaring the same exclusive right.

The Committee do not understand, that either the States, or the Federal Government, ever acted upon the principle, that It was necessary to obtain the consent of the Indians, before the right to exclude all competitors from the market of their lands could be asserted, It is asserted, upon the ground of ownership and political sovereignty, and can be sustained upon no other principles than those which our ancestors supposed to be well founded, when they denied to the Indians any right to more land than they required for their subsistence by agriculture. The Indians are paid by for their unimproved lands as much as the privilege of hunting and taking game upon them is supposed to be worth, and the Government sells them for what they are worth to the cultivator. The difference between those values is the profit made by asserting the original rights of discovery and conquest. The rigor of the original rule has been mitigated in the exercise of this right of pre-emption, in regard to such landsas have been improved by the Indians, for the same reason, that their right to such as they had subdued, was respected by the colonists in the early period of their history. Improved lands, or small reservations in the States, are, in general, purchased at their full value to the cultivator. To pay an Indian tribe what their ancient hunting grounds are worth to them, after the game is fled or destroyed, as a mode of appropriating wild lands, claimed by Indians, has been found more convenient, and certainly it is more agreeable to the forms of justice, as well as more merciful, than to assert the possession of them by the sword. Thus, the practice of buying Indian titles is by the substitute which humanity and expediency have imposed, in place of the sword in ar-

{7} {Rep. No. 227}

riving at the actual enjoyment of property claimed by the right of discovery, and sanctioned by the natural superiority allowed to the claims of civilized communities over those of savage tribes. Up to present time, so invariable has been the operation of certain causes, first in diminishing the value of forest lands to the Indians; and, secondly, in disposing them to self readily; that the plan of buying their right of occupancy has never threatened to retard, in any perceptible degree., the prosperity of any of the States. The extensive tracts of the country, at first withheld from agriculturist by reservations, in several of the old States, have been gradually reduced, by various cessions, made as they were required by the interests of the respective States, until the Indians, in most of them, already find themselves restricted to those small bounds, which the law of nature, as interpreted by our ancestors, prescribed as their right. With what steadiness this policy has been adhered to by the States generally, in regard to Indians reservations, in which they claimed the absolute property, may be seen by tracing its operation in any on of them; for, in all, the interest was the same, and the results could not vary materially. The governor of the only one of the old States, except Georgia, inhabited by any considerable number of Indians, is, by law, a standing Commissioner to treat with the Indians for any or all their lands.

In justice to the character of the early adventurers to this country, as well as to our own, it out to be mentioned, that, from the period of the original of these states, the interests of the white population and those of the Indians were understood by the whites not to be inconsistence with each other, in regard to the appropriation of forest lands.

Until a very late day, the opinion was very general, if it is not so now, among the best friends of the Indians, that they could never be brought to relinquish their ancient habits, and to participate in the blessings of civilized society, until they were reduced, by loss of their hunting grounds, to the necessity of seeking subsistence by agriculture, or be regular industry, in the practice of the mechanic of arts. All the early plans for the amelioration of the condition of the Indians, had this sentiment for its basis. Some further apology for the manner in which this extraordinary race have been deprived of their ancient resources may be found in the Indian idea of property in lands. They do not appear to have had any conception that lands could be the subject of barter, until they were taught by the white man so to regard it. The ground covered by their moveable wigwams, to which might be added, in some parts of the continent, their small corn patches, constituted their only actual possessions. These they maintained, until driven from them by their enemies, or until they voluntarily abandoned them in search of new abodes. The boundaries of their villages were the only marks. Game abounded every where, and, as the possibility of its scarcity had never occurred to them, each tribe took what game they wanted for their subsistence, as near the villages of other tribes as they chose in peace, or as they durst in war. By interpretation of natural law, the whole country was a common hunting ground for all the Indians, while friends, and a common theatre of war, among enemies. Their erratic and warlike habits necessarily produced frequent migrations of whole tribes from one part of the country to another. When one of these migrating tribes appeared in the neighborhood of the villages of another, if they were recognized as friends, they were welcome to set up their wigwams on any spot not already occupied, and the bounties provided by nature were freely shared with them. Thus

{8} {Rep. No. 227}

It was, tat, in scarcely any instance, in the history of the first settlements, did the natives regard the European adventurers as intruders, after they became satisfied of their pacific intentions. Their alliance and protection were often sought by neighboring tribes, and invitations were, some times, given, to come and settle upon their ordinary hunting grounds. It was not until the Indians began to feel the effects of the destruction of their game, and other inconveniences which attended the near approach of the white settlements, that they began to complain of the appropriation of the lands around their villages. Up to that period, lands were voluntarily yielded; and extensive regions were ceded, for no other consideration that the gratuities which were usually bestowed at the talks or treaties held with them. The most sagacious of the Indians themselves, at this day, observing that whatever has, at any time, been given for their lands, has been rather swallowed than enjoyed by them, feel that they must look beyond the occasional appropriation of their hunting grounds, without their consent, for the cause of their misfortunes. Philip, of Pawkunawkutt, understood the extent of the calamity which had befallen his race, and the true reason of it. From the time of the first permanent lodgement of the white man upon these shores, the destiny of the red man was placed, perhaps, beyond the reach of human agency. There was one remedy- to have abandoned the continent to the undisturbed possession of the Indian.

The extent of the political privileges conceded to the Indians, after the adoption of the principle, that they had no permanent interest in their hunting grounds, might be determined without resorting to the evidence furnished by legislative and judicial records. In the primitive condition of these tribes, they would have been independent in fact, if they had inhabited within the jurisdiction of the most powerful European State; and it would have been necessary to the safety and order of the established society, either to exterminate them in war, or to find out some other mode of making their existence compatible with those objects.

To govern turbulent and warlike bands of Indians by regular law, administered in the ordinary form was impossible. To impose such restraints as were in the power of the Government to execute, was all that a practical people would attempt; and, therefore, what ordinary legislation and regular administration of justice could not effect the colonists sought to supply by gratuities, and appealing to whatever sense of the obligation of promises the habits of the Indians permitted, for the observance of such rules of intercourse, between them and the white population, as were agreed upon, in friendly conference and treaties. These treaties were, therefore, but a mode of government, and a substitute for ordinary legislation, which were from time to time dispensed with, in regard to those tribes which continued in any of the colonies or States until they became enclosed by the white population. This transition from the practice of conciliating by treaty, to that of controlling by regular laws, has taken place it is believed, with all the tribes in the old states, except Georgia; and in some of the new, as in Maine. It is true, that the legislation in most of the States, has been simple, and intended rather for the protection that the restraint of the Indians. The tribes thus brought within the ordinary jurisdiction of the States, are indulged in the enjoyment of their ancient usages, so far as such a license is found compatible with the peace and good order of society; and whatever restrained have been imposed for any purpose, seem, in general, to have been adapted to their condition, with a humane discrimination. When the Indians

{9} {Rep. No. 227}

were wild and turbulent, all that was required from them was, that they should respect the lives and property of the whites. When they ceased to be hunters and became surrounded by white population, their trade was no longer worth any thing; and being without energy, in any of the employments of peace, they had but little to contribute to society, and, of course, the duties exacted from them were simply and easy. Indeed, the principal part of the legislation concerning them, in any of the States, has been designed to save them from a state of general and helpless pauperism. By reason of the general indulgence allowed in the practice of their ancient habits and usages, and their exemption from the ordinary burthens of the State, the action of the Government upon them, would, of course, only become palpable to the observation of the public, in the trials, and sometimes in the executions which have followed, for the breach of criminal laws. These circumstances of their situation appear to have led some suppose, that a portion of the ancient independence of these tribes still remained, which the States, in the exercise of their jurisdiction, could not affect. The committee, upon this point, concur in the opinion of the Supreme Court of New York, expressed in a case which this question incidentally arose, and in which the distinguished Judge, who delivered the opinion of the court, declared that he “know of no half way doctrine on this subject.” A State either has jurisdiction or it does not. The authority which can rightfully punish for offenses against the public peace and morals, and wrest from the Indian tribes the exercise of a part of their ancient usages, is competent to abolish the whole. The principle upon which jurisdiction is assumed, does not admit of division.

More than its due effect is often give to the circumstance of the actual independence which all the Indian tribes once enjoyed, and which many yet enjoy, within the territorial jurisdiction of the Unites States, in forming an opinion of the right of the appropriate sovereignty, where it finds it expedient, to bring them under the dominion of its laws. The distinction is not always adverted to, between privileges and immunities indulged, and such as are enjoyed as a matter of right; between such as are acknowledged by law, and those which are merely tolerated, either because the State having the right, cannot, or does not care to interfere. The exercise of entire freedom in the regulation of every internal and domestic interest of a community, is not believed to be inconsistent with the most absolute subjection in everything which concerns its external relations and connexions with the rest of society. The communities founded by Rapp and Owen, in the bosom of these States, in which it is understood, property was enjoyed, and many usages established and respected among themselves, wholly different from the practice and customs of the surrounding society, do not seem to have been inconsistent with the sovereignty of the States in which they were located. The States had the right, whenever the practices of those communities became offensive to public morals, or dangerous to the public peace and welfare, to suppress them. A State is not obliged to exercise all its rights of sovereignty at once; nor is it a new case, or one of uncommon occurrence, that a States finds itself deficient in the physical resources necessary to the exercise of its rights of sovereignty. Humanity has often pleaded successfully against the exercise of rights which belonged to a States as essential attributes of sovereignty.

Observing that many of the States had asserted the right of jurisdiction over the Indian tribes within their limits, some of those who favor the claims of the Southern Indians, have supposed that a distinction might be

{10} {Rep. No. 227}

made between reduced tribes, and such as are still formidable by their numbers; between those who have submitted, voluntarily, to the laws of the States and others; and between such as had made treaties with the United Sates, and those which never had received any such attention from the Government. As to the effect sought to be given to the numbers of a tribe, the general practice of the States seems to have established, that the rights of a tribe are the same, whether it consists of five, or five thousand souls. Reservations of land appear to have been made in reference to the Indian mode of enjoying that kind of property, and all the rights of the tribe, as it existed at the time of the grant, have been conceded to the surviving members, however few in number. Political rights, it is believed, as a general principle, have never been admitted to depend upon the numbers of the community which claims them; nor could a usurpation of them be justified upon an such grounds. If the States which have exercised jurisdiction over the Indians, had done so only upon a surrender of the separate political rights as people, as such an act would imply one of the most affecting and solemn ceremonies which the intercourse between the communities and nations can give rise to, the forms pursued upon such imposing occasion would have found a place among the historical records of the country. To attempt to give any such solemn effect to the submissions of the Sachem of an Indian village, who had not the power to resist, or to the more formal promises of obedience made by powerful tribes, and which were regarded, in general, as meaning nothing more than a primes to live in peace with the white population, seems to be supported by too little reason to deserve a serious notice. These stipulations were often disregarded as any others into which the Indians entered; and it is not pretended that a formal surrender of political rights preceded the exercise of jurisdiction, in all cases. The policy of the country has always been to avoid provoking the Indians; and. Even if it could be shewn, that the exercise of jurisdiction, in any case, was avoided, because the Indians objected, still the right could not be affected. If a formal surrender of political sovereignty, by an Indian tribe, can be safely relied upon, in any case or, if it would strengthen a claim of jurisdiction founded upon such surrender, to add to it the title of a conqueror, one of the Southern tribes would have as little claim to independence as any other within the limits of the United States. In 1730, the Cherokees made a more formal and ceremonious relinquishment of their sovereignty, that any recorded in the history of this country. Besides the ceremony of submission, which took place in a general council of all the chiefs of the tribe, to Sir Alexander Cumming, as the representative of the King, six of the principal chiefs were selected, who actually went to London, and laid the crown of the Cherokee nation at the feet of the king, and acknowledged themselves subject to him, in the same manner their white brethren of the colony of Carolina were. Their allegiance was faithfully kept for twenty-five years. In 1755, they gave fresh pledges of it, the speaker of the council in which they were given, shewing a perfect understanding of the obligation his tribe had come under, when he said to the colonists, “one house covers us all.” In that year, Fort Loudon was built, in the very midst of the fastnesses of the Cherokee country, and garrisoned by two hundred men. The war which ensured shortly afterwards, between them and the colonies, and the disastrous fate of Fort Loudon, need not be recited. At the commencement of the Revolutionary War, the Cherokees again took up the hatchet against the colonies. In 1776, their whole country was over

{11} {Rep. No. 227}

run, and they asked for peace, in the most submissive terms; and it was granted to them, at a treat held on Long Island, in Holston river, and also at Duett’s Corner. As soon as they supposed, from the critical condition of the colonies, during the further profess of the war, that they could gratify their revenge with impunity, they re-commenced hostilities, and in 1781, their country was once more overrun. Their submission was also again accepted, and peace and their country restored to them. In the 9th article of the treaty of Hopewell, this tribe expressly stipulated, that the United States “should have the sole and exclusive right of managing all their affairs, in such manner as they think proper.” But the character of the whole legislation of the States, in regard to the Indian tribes within their limits, shews, most conclusively, that their consent to a surrender, either of lands or liberties, when the substance is looked at, instead of the forms of things, will be found to furnish no real foundation of authority or right to accept either of the one or the other. One of the first acts of most of the States, after assuming jurisdiction over the Indians, has been to declare, unequivocally, their utter incompetency to make a contract upon equal terms with the whites, or which should, in equity and good conscience, be enforced against them. Their lands and persons are both taken into wardship; and the members of ancient and independent communities appear no sooner to have yielded up their political privileges, than they have been declared in a state of pupilage, and incapable of managing their own private affairs. Most of the tribes in the old States have guardians, under some denomination or other, appointed by law to take charge of their property.

It will be found that no greater weight is due to the stately forms which Indian treaties have assumed, nor to the terms often employed in them to designate the tribes with which they have been made. If mere names, and the forms of intercourse with barbarous tribes, are to be regarded as evidence of political sovereignty, the confederacy of the Indians, so long known by the name of the Six Nations, might bring such proofs of their right to be considered free and independent nations, as could not be resisted. Those tribes have enjoyed a greater share of actual power, and made more treaties, in which their vanity has been flattered by the acknowledgement of their name and rank, as a confederacy of nations, than any other tribes known to the history of this country. They have alternately excited terror and respect in their intercourse with the white population of the colonies or States, and may justly claim to have exhibited the higher and finer traits of the Indian character in greater perfection than any other portion of their race in this part of the continent. Still, they were savages in their customs and feelings; and, like other tribes, they have denied the right of absolute property in the soil of their ancient theatres of war, and have finally passed under the dominion of a civilized state. The United States have held frequent treaties with them; yet this circumstance does not seem to have altered the relations between them and the State which they inhabit. In the history of these celebrated tribes may be found the clearest illustrations of the views presented by the committee upon the subject of Indian rights generally. The trial of an Indian of the Seneca tribe for the murder of one of his own people, before a Sate court, about ten years ago, led to such an examination of the right of a State to extend its jurisdiction over the Indian tribes within its limits, as to cause the question to be settled in New York with great solemnity and deliberation. The Indian, it seems, was convicted, but was recommended for a pardon by the court, upon the ground that the State had indulged the Indians, up to that time, with the

{12} {Rep. No. 227}

privilege of punishing for all offences committed by one Indian upon another; but all Judges of the Supreme Court of the State appear to have concurred in the opinion, that the State had jurisdiction of the case; and, in a communication to the Governor, advised the enactment of a declaratory law upon the subject; and from motives of policy, recommended that small offences should still be left to be punished by the Indians themselves. But the committee of the Legislature, to whom the subject was referred, reported, “that, upon a deliberate consideration of the whole subject, and consultation with the Judges of the Supreme Court, they were of opinion, that it would not be expedient to leave to the Indians the right to correct or punish their own people, for any violation of the laws of the State or for offences against their regulations, in any case;” and a bill was brought in, and passed into a law, in which it is declared, “that the sole and exclusive cognizance of all crimes and offences committed within that State, except only, such crimes and offences as were cognizable in the courts claiming jurisdiction under the constitution and laws of the United States, belonged of right to the courts holden under the constitution and laws thereof, as a necessary attribute to sovereignty.” This act, it is clear, was not understood as introducing any new principle. It only marked the period in which the tribes inhabiting that State passed from a state of lawless independence under the protection and control of the civil magistrate; and recognised the general principles, that territory and jurisdiction, considered in reference to a state or a nation, are inseparable; that one is a necessary incident of the other; and that, as a State, cannot exist without territory, the limits of that territory are at the same time the limits of its jurisdiction. What constitutes the territory of one of these United States, must be determined by its own charter or constitution; and the State of New York seems to have acted in conformity with this principle. The law declaring the jurisdiction of that State, has been enacted several years, and the committee do not find that its validity has ever been seriously questioned. It appears to the committee, that, when it is conceded, as it must be, that a State or nation cannot exist, except in connexion with territory, the single consideration of the nature of the title under which the Indian tribes occupy their reservations, is decisive of the extent of their separate political privileges. Before the settlement of this part of America by Europeans, the identity, and whatever of national character they possessed, were preserved by these tribes in all their migrations. The political or social bonds which united them as a people were personal merely. Hence, the Shawanees and the Delawares, with diminished numbers, are the same tribes or nations now, that they were before the one was driven from the South by the Creeks, and while the other inhabited the banks of the Delaware river. This resulted, no doubt, from their general habits, and from the circumstance that they had no idea of a fixed property in the lands before the partition of the country among civilized nations; and since that time, it is a condition imposed by necessity. Either the constitution, laws, and general policy of these States must yield, or the Indian tribes within their limits must continue to want an essential element of sovereignty.

The rights of the Indian tribes, generally, being limited, by the policy of the country, in regard both to property in the soil and the enjoyment of separate and independent privileges, in the manner which the committee have endeavored to point out, it follows, that, if the Cherokees, or any other Indian tribe, can claim an exemption from the operation of principles so

{13} {Rep. No. 227}

long established, and adhered to so uniformly, it must be upon the ground, that a power competent to so important a purpose, has interposed to change the former policy of the country, and to establish new relations between them and the governments established by the white race around them. It is also clear, that no construction of Indian rights, which would give them a greater interest in the soil., or an separate political rights, must be necessarily impair, in a corresponding degree, the proprietary interests, and political sovereignty and jurisdiction of any State, having the absolute property in the lands occupied by the Indians in its limits. A power which can take away or impair a right of property in a State, and, at its discretion, set bounds to its jurisdiction, will be acknowledged to be of the greatest importance to be understood. This power is said to exist in the General Government, under some on or al of the several clauses of the Constitution; in one of which it is provided, that the President “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;” and in another, that “Congress shall have the power to regulate commerce with the foreign nations, and among the several States, and with the Indian tribes.” To these may be added the war-making power, and the further provisions, that “Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States.” Thee power to treat with, or to regulate commerce with, the Indian tribes within the States, is not expressly given; and if such power had been given, the question would still arise, whether it necessarily implied the right to interfere with, or defeat the rights of property and jurisdiction, in a State. The territory in which the General Government had a proprietary interest besides the political sovereignty, would be clearly a proper subject for federal legislation; but the establishment of the boundaries of land in which the General Government never had an interest, but in which a State did have the absolute property, seems to the committee to be carrying the doctrine of implication beyond a safe and reasonable limit.

But waiving, for the present, the question of power, and supposing it to exist, the committee will inquire in what manner the Government was bound to exercise it. When Georgia became a party of the Union, more than three fourths of her present limits were claimed by the Creek and Cherokee Indians, in the same manner, that large portions of other States had, at some period or other, been claimed by other tribes. At the same period, her policy was, and always had been, such as has already been described as the general policy of the country, in relation to the extinguishment of the Indian title, and the appropriate of wild lands. The essential point in that policy may be briefly stated to be, that the Indian reservations should be gradually contracted within such reasonable limits, that no part of the country should continue uncultivated. Her policy in this respect, was a part of her rights. Any thing which tended to defeat its operation was a deprivation of right. That Georgia, having so great a proportion of her territory occupied or claimed by Indians, and her resources depending so much upon the prudent management of that interest, could have supposed, that she was surrendering the control of it, when she came a party to the Constitution, no one, it would seem, could believe without great hesitation. But, if it became necessary tot eh general welfare to maintain, that the exclusive control of this great interest of Georgia had passed from her to the Federal Government, as an incident to the treat-making power, or to the power to regulate com-

{14} {Rep. No. 227}

merce with the Indian tribes; the obligations which thereby devolved upon the General Government, in relation to the interest of Georgia, assumed new delicacy and importance, from the manner in which she was divested of the management of an interest so important to her future prosperity. The powers delegated to by the Constitution to the Federal Government, were accompanied by duties and responsibilities to its own members, of the most sacred character, which those who administer its affairs, in any of its departments, can never safely disregard. Admitting that Georgia, when she became a member of the Union, understood that she was confiding her most important domestic interest to the discretion of the Federal Government, it is proper to inquire what obligations were assumed on the part of the Government, in consequence of that trust. Whatever these were, by every consideration of food faith, it would seem, should be strictly observed. The committee understand the Constitution to be a compact between States, or the people of States, which differs only from others, in this, that, upon the faithful execution of the stipulations contained in it, according to the true spirit and meaning of them, depend greater and more universal interests, than belong to any single State, or race, or generation.

When Georgia surrendered the power to treat with the Indians within her limits to the Federal Government, for the common benefit, if she did so at all, her just and reasonable expectations were, that the power be wielded in accordance with her former policy, and continuing interests in regard to her wild lands, and the claim of the Indians upon them. Ever departure from that policy, it would seem, was a breach of good faith on the part of the Government. No emergency in the public service could authorize the General Government to cede away a single acre of land, or to change the title by which lands lying in the State of Georgia were held, that any mitigation in the construction of Indian rights should be indulged, care should be taken, that a policy, adopted in conformity with t, should be assented to those whose interest or property are to be affected by it. Georgia might say to the Indian tribes upon her borders, you shall be asked to recede no further; but, if she has not thought proper to do so, the States have already pushed the Indians beyond their own barriers, have no to indulge a finer feeling be encouraging them to remain in Georgia. In the opinion of the committee, of the Constitution vested in the Federal Government with the exclusive right to treat with the Indians in any of the States, then, the compact of 1802, by which the United States undertook to extinguish the Indian title to the lands claimed by them in the State of Georgia, as soon as it could be done “peaceably, and upon reasonable terms,” only superadded the obligation to pay the cost of cession of them. The obligation to treat was perfect before, as respected the rights of Georgia.

The committee, feeling it to be their duty to avoid any contested point of constitutional power not absolutely necessary to be noticed, will only submit, in addition to what has already been said upon the general right of the Federal Government to interfere with the affairs of the Indians inhabiting any of the States, that, if it were necessary to examine the question further, the strongest reasons would be found to exist for denying any such right.

If it be admitted, however, that such a power exists, the necessary limitation of it will appear clear and indisputable, from the general purpose for which it is claimed; from the history of the period at which the Constitu-

{15} {Rep. No. 227}

tion was adopted; and from other provisions of the Constitution itself. All the powers of the Government are acknowledge to be limited by their nature of the objects intended to be answered by the grant of them. A further limitation of the means by which many specific powers are to be executed, will be found in some fundamental principle of the Constitution, which was intended to be preserved entire. Such unyielding principles as these, of the course, are closely identified with the main purposes of the Union. Thus, the prime object of the States, in becoming parties to the Union, was to secure their own existence; and besides the express guaranty of the States, that instrument may be said to constitute a general guaranty of the States, embracing not only the territory included in the limits of each of them, but also the particular form of government therein established. It is a further fundamental principle of the Constitution, that all contributions, required for the public service, shall be apportioned among the States according to a fixed ratio; and that private property shall, in no case, be appropriated to the public service without compensation. Let these principles be applied to the exercise of a power to interfere in the affairs of the Indian tribes within any of the States. The general purpose for which the power was given, if given at all, was to preserve peaceable relations between the Indians and the citizens of the United States. The control of the trade of the Indians being always regarded as he most efficient means of preserving peace with them, the power of regulating their commerce was, no doubt, given for that purpose. Whatever stipulation or provision, therefore, it might be necessary to embrace in any treat of act of Congress, to effect the general object of the power, it might be competent to the Federal Government to sanction, if such provisions and stipulations should not conflict with other interests or objects of equal or greater concern. If the friendly disposition of a tribe of Indians inhabiting territory belonging to the United States, could not be secured without giving them the absolute property in their hunting grounds, although the President and Senate, under the treaty-making power, might not be competent to dispose of the public domain for that purpose, yet Congress, having the absolute control of the public property, might have the power to make the donation. But it would seem to be a different question, when the territory and the jurisdiction of a State become the subjects of Federal power, exercised for the purpose of preserving peace with the Indians; in that case, whatever might be effected, in securing the general object of the power, by gratuities in money, by supplying such articles of trade as the wants of the Indians required, and other means of conciliation, not inconsistent with the rights of property and jurisdiction in the State, would be no infringement of the Constitution; by whatever went beyond this limit, would be the destruction of the very interests for the security and preservation of which, the Government itself was instituted, and would therefore be void. The objection that the power to treat with the Indians, or to regulate their trade, under this limitation, might be rendered inoperative by the obstinacy of the States, would be equally good against a limitation upon ant other power of the Government. If any part of the property or jurisdiction of a State may be disposed of by the Federal Government, to an Indian tribe, as a means of procuring peace, similar rights may be ceded, upon the same principles, to a foreign Power, as the price of peace, with it also. Our ancestors do no appear to have acted upon such principles; not do the framers of the Constitution seem to

{16} {Rep. No. 227}

have thought it necessary to provide for the relinquishment, to any other people or nation, of a part of the jurisdiction and territory of one State, that others might be permitted to exist entire. Such surrender of territory and jurisdiction is the resort only of a conquered people. Under the guaranty of the Constitution, it would appear that, in this country, all the States must be protected and secured, at the hazard of all.

The difficulty of reconciling the exercise of any power, in relation to Indian tribes within the States, with other provisions of the Constitution, seems to have been felt by those who were called upon to organize the Government under it; and although, under the peculiar exigencies of the time, a practice was adopted in relation to this subject, founded more upon views of expediency and policy, than upon any clear constitutional principle, yet it will be found, as the Committee believe, that the rights and policy of the States have, in general, been recognized and respected by the Government. From the peace of 1783, with Great Britain, until the adoption of the Constitution, the Indians of the South as well as of the Northwest were engaged in continual hostilities against the whites. About the close of the same period, or shortly afterwards, it is known that the difficulties between this country and the courts of Great Britain and Spain, assumed a serious aspect. The retention of the Western posts on the one side, and the impediments that existed in the collection of British debts on the other, afforded matter for mutual crimination between Great Britain and the United States and the dispute with Spain, upon the subject of boundary, and the navigation of the Mississippi, soon arose to an equal degree of bad feeling. About the same time, a general combination of the Indians, both of the South and Wet, menaced the frontiers. It was then suspected that the former ravages of the Indians had been encouraged by the foreign enemies of the United States, and it was afterwards satisfactorily proved, that their hostilities, during the whole of the first term of General Washington’s administration, were not only encouraged, but that means of carrying them on were actually furnished, by the agents or traders of Great Britain and Spain. The financial resources of the country, at the commencement of this period, had not yet developed themselves, and the regular troops in the service of the Government, did not exceed a single regiment. It was at such a crisis, and under such embarrassments, that General Washington and his cabinet were called upon to bear the principal responsibility in placing a construction upon the most important provisions of the Constitutional and the extent of the treat-making power, in regard to Indian tribes, was among the first points which it became necessary to settle. These causes, no doubt, exercised a powerful influence upon the practice which was adopted at that period, and which has been followed, without any serious opposition, until now, that an actual conflict of powers and jurisdiction is threatened.

It was then, that General Washington appears to have conceived the design of establishing one connected Indian boundary, from Lake Erie, to the St. Mary’s of the South, which should be in advance of all the white settlements, and of employing all the energies of the Government to secure its observance. For this purpose, he caused a series of negotiations to be commenced with the various hostile tribes, which terminated in treaties, at different times, between 1789 and 1795, the stipulations in all of which are the same in substance. The first was made with the Creeks, in August, 1790, the fifth article of which is in the following words: “The United States solemnly guaranty to the Creek nation, all their lands

{17} {Rep. No. 227}

within the limits of the United States, tot eh Westward and Southward of the boundary described by the preceding article.” The next in point of time, was made with the Cherokees, in July, 1791; the seventh article of which is in these words: “the United States solemnly guaranty of the Cherokee nation, all their lands not hereby ceded.” The next in the order of the series seems to have been one made with the Indians on the Wabash, in 1792; the fourth article of which, instead of guaranty, contained a formal relinquishment of the claim of the United States, to the Indians, of all their lands, not ceded by the treat; but, when this treaty was laid before the Senate, the fourth article was regarded as expressing more than could be prudently admitted, and it was therefore not ratified. The treaty of Greenville, made by General Wayne, in 1795, with the tribes of the Northwest, after describing a boundary from the mouth of the Cuyahoga, on Lake Erie, to a point on the Ohio, opposite the mouth of the Kentucky river, and the cession made by the Indians of the ands on one side of it, concludes with a relinquishment “of all other Indian lands northward of the river Ohio, eastward of the Mississippi, and westward and southward of the great Lakes and the waters uniting them.” This relinquishment was explained in a subsequent article to mean no more than, that the United States would not claim the lands relinquished to the Indians until they were willing to sell them. This treaty contained all the rigorous provisions for excluding white settlers from the Indian lands, with the same promise of protection which are to be found in the treaties of 1790 and 1791, made with the Creeks and Cherokees. This was also the last of a series which fixed the general Indian boundary described in the act of Congress of 1796, regulating the trade of the Indian tribes.

The Cherokees were promised, in 1788, by the Congress of the Confederation, that the arms of the Government would be employed against the white intruders upon the lands reserved to the Indians by the treat of 1785, and a proclamation was published, menacing the same kind of interference. General Washington again, in 1789, promised the Indians to employ the most efficient means for their protection, as soon as the Government should be authorized to act. The General Government, at that time, and for some time afterwards, seems to have acted upon the supposition that the principal cause of Indian hostilities in the South, had been unauthorized conduct of white men in settling upon the Indian hunting grounds. It was therefore thought necessary, in order to ensure peace, that some strong and decisive evidence should be given of the determination of the Government to prevent, by force any further intrusions upon the lands reserved for the Indians, and a guaranty of their boundary was thought of, as the means best calculated to effect the object. It was probably a device, adopted more for the intimidation of the whites, that for any effect it was likely to have upon the Indians themselves. If the United States had the power to fix a boundary in the State of Georgia, at all, good faith would have required the observance of it, with a guaranty. Entering in a guaranty could not confer a power, which did not exist before.

If any proof were warning to show that the guaranty in the treat with the Cherokees meant any thing more than has been already stated, it may be found in the gross violation of good faith, which any other construction of its meaning would involve, in the conduct of the Government in its relations with the State and citizens of North Carolina. That State, in 1783, after allotting, voluntarily, to the Cherokees, a liberal portion of her

{18} {Rep. No. 227}

Western territory for their hunting grounds, asserted the right of appropriating the balance of the lands within her charter for the purpose of compensating the officers and soldiers of her line for their services in the Revolutionary War; and to raise a find for the payment of the debts she had contracted in the same contest. In the exercise of this right of sovereignty, she had sold a considerable portion of these lands to her own citizens, before the treaty of Hopewell, in 1785. Against the treaty, Georgia and North Carolina had both protested, as an infringement of their rights; and North Carolina continued the sale of her lands until 1789, when she ceded her Western territory to the United States, upon the condition that the rights required by the purchasers of her lands, according to the provisions of her laws, should be respected. This cession was accepted, with its conditions, by Congress, in 1790, and in the following year, the treaty of Holston was made, which included, in the Indian boundary, not only a large portion of granted lands, but a whole district of country, to which the Cherokees had Duck and Elk river country of Middle Tennessee, the Cherokees never had any right to, even according to their own loose and indefinite mode of making out a title to hunting grounds.

In what light the Creeks and Cherokees themselves regarded this novel stipulation in an Indian treaty, may be fairly inferred from their conduct. There are thousands of living witnesses to the fact, that the treaties of 1790 cured scarcely a temporary suspension of hostilities. When it was understood by the Federal Government, that the Cherokees continued their depredations, under the treaty of Holston, and after al complaints of intrusions upon their lands had ceased, some of their chiefs were prevailed upon to visit the seat of Government, where, in July, 1792, they procured a voluntary addition to the annuity provided by the treaty of the preceding year, and were sent home loaded with favors. While a part of the tribe were thus flattering the Government with assurances of peace, the rest of them had been engaged in preparing for a more general war. In September, 1792, upwards of seven hundred Cherokee and Creek warriors attacked Buchannan’s station, within four miles of Nashville, headed by the notorious John Watts, one of the signers of the treat of Holston. A dangerous wound received by Watts, during the attack, was supposed by many to have saved the station. In September, 1793, between twelve and fifteen hundred Indians, of the same tribes, invaded the settlements on the Holston river, and actually destroyed Cavit’s station, in the neighborhood of Knoxville. The Intermediate periods, between 1791 and 1795, were filled up by the incursions of smaller war parties; and it was not until the latter year that the frontiers found any repose from the murders and ravages of the Indians. The general tranquility enjoyed after that time, does not appear to have been the result of any treaty. Even the treat of 1794, by which the Cherokees received an addition of 3,500 dollars to their former annuities, had no the effect of securing their friendship. The victory of the 20th of August, 1794, over the Northern Indians, with whom the Creeks and Cherokees had kept up a regular correspondence; the expedition which was secretly planned, for carrying the war into the Cherokee country, and which was successfully conducted by the suffering frontier inhabitants; and the pacific dispositions of the Spanish authorities of Florida, which preceded the treat of 1795 with Spain, were the actual restorers of peace.

{19} {Rep. No. 227}

After this time, the Government was under no obligation to renew the guaranty contain in the treaties of 1790 and 1791, with the Creeks and Cherokees, but, as it has done so, it only shows, that that stipulation was not believed to affect the nature of the title by which those tribes held their lands, or to introduce any new principle, in relation to their rights generally. But, a reference to a few leading points in the general policy of the country, In relation to Indian tribes, and the lands occupied by them, will show, that, at no period, has the opinion been entertained or acted upon by the Government, or by the people of this country, that the Indians had either the absolute property, or the political sovereignty, in any of the reservations held under any treaty made with the Federal Government. The general Indian boundary established by the act of 1796, is believed not to have interfered with any of the civil divisions of the States through which it passed, in which justice was regularly administered. The Indian intercourse laws of 1793, 1796, 1799, and the permanent act of 1802, recognise the distinction found in the 9th article of the Confederation, between such tribes as had passed under the actual control the laws of a State, and others which, while they were liable to such control as inhabitants of the State, yet, by reason of their fierce and savage habits, had not been, in fact, subject to laws. These acts except from their operation the trade such tribes as “are surrounded by white population, and within the ordinary jurisdiction of any individual State.” In the spirit and policy of most of the provisions of the Indian intercourse laws the Southern tribes do not seem to be embraced, as they were at present situated. Acting in reference to the same distinction, the Government took under its control, some tribes, soon after its organization, which have since been silently and gradually permitted to pass under the government of the civil magistrate of the State which they inhabited. Upon a full knowledge of all that had been stipulated with the Creeks and Cherokees, and, at the same time, it must be presumed, with a perfect understanding of their meaning, the Federal Government has made the most important political calculations and arrangements, and exercised the highest power given by the Constitution, in the admission of new States, embracing those tribes within their limits.

But, if the views presented in the preceding part of this report be correct, the right of jurisdiction in the State remains unimpaired, whether the General Government, by any of its acts, intended to confer any separate political privileges, or whether the Indian tribes so understood the Government, in any of its transactions with them, or not. The superior right of the State to the control every inhabitant within its territorial limits, whether citizen or alien, must prevail over every inferior or inconsistent claim. And, after all, since it is understood that neither Georgia nor any other State will attempt to appropriate the lands within the Indian reservations, without their consent, the only subject of complaint left to the Indians, will be, that they may be compelled to yield to the jurisdiction of the States. The lands which constitute the object of the guaranty of the United States, still remains to be enjoyed by them. All the States, within the limits of which any portion of these tribes may continue to reside, when they shall come to consider of a permanent policy in relation to them, will, no doubt, model it by a standard, which the enlightened humanity of the age will approve as appropriate and just. The committee do not believe that the exercise of jurisdiction by the States, over the Southern Indians, will materially affect either their present happiness or their future prospects. Their chiefs, or those who have managed to place themselves at the head of their

{20} {Rep. No. 227}

affairs, will be the principal sufferers the change. With this class, it is not the fear of being governed by laws, unsuitable to their condition, which makes the idea of passing under the jurisdiction of a State so terrible: for, in general, they have the means and the habits of making themselves comfortable under any system; but much of their present power and consequence drop from them the moment the laws of the State take effect over their reservations. Those of them who have been the fathers as well as the chiefs of their people, as in former times, will receive the public sympathy: but their power of doing good and of enjoying the love of their people, will not be taken from them. That there may be some such, the committee believe; but that, in general. In the Southern tribes, avarice, and a corrupt love of power, have supplanted ever thing that claimed respect in the former practice of their chiefs, the committee are well satisfied. In all these tribes, it appears that a very small number of artful and ambitious men, and sometimes white men, thrust themselves into the management of their affairs, and secretly or openly become absolute in the direction of them. The personal consequence which follows the possession of power every where, may be some inducement to see this pre-eminence; but the annuity system will, perhaps, be found to be the great source of corruption among the principal Indian chiefs. To have the control and distribution of them, is believed to be the highest object of ambition, with the greatest number of them. The destruction of an influence, acquired for such a purpose, does not seem to call for many regrets. As to the mass of the Indian population, they can seldom feel the operation of the law, except for the violation of the criminal laws of the State in which they reside. Most of their ancient usages, their dances, their ball plays, and their right to take game wherever they can find it, will still be their privileges. They will have but little use for the government of their chiefs, unless the means of subsistence could be supplied by them. A middle class, which is composed chiefly of a mixed race, will become good citizens, or be permitted to enjoy their property and liberty, with no other restraint than is imposed in the natural obligation to respect the rights of others. The most serious inconvenience attending the assertion of the rights of jurisdiction over the Indians by the States, will arise from the operation of two or three distinct codes of law over different parts of a people, whose usages and laws have heretofore been uniform. But, in the opinion of the committee, the jurisdiction or laws which may be brought to operate upon this singular race, is not eh evil, which those who cannot be indifferent spectators of their condition, have most to dread in relation to them. The true nature of the calamity which threatens them, and from which some power, competent to save them, is invoked, by so many considerations of generosity and pity, will be partially understood, when the fact, which to many, must be incomprehensible, is stated, that, out of a population of 60 or 65,000 souls in the enjoyment of twenty-five or thirty millions of acres of fertile land, 50 or 55,000 Southern Indians may be said to have no property at all, and that a large portion of them are in fact below the condition of the common paupers among the whites. The Southern tribes do no present the case a few hundred, or a few thousand Indians, who may have remained on a reservation enclosed by the white population of other States: they present the materiel of a future mass of wretchedness and degradation, which, to those who have duly considered the Indian character, and the causes which have heretofore, and, under similar circumstances, will continue to depress and debase their condition, must appear truly frightful.

{21} {Rep. No. 227}

That the greatest portion, even the poorest class of Southern Indians, may, for some years yet, find the means of sustaining life, is probable; but, when the game is all gone, as it soon must be, and their physical as well as moral energies shall have undergone the farther decline, which the entire failure of the resources of the chance has never failed to mark in their downward career, the hideous features in their prospects will become more manifest.

The committee do not mean to exaggerate, either in the statement of facts, as they are believed to exist, or in the deductions which they make from them, as to the future prospects of the Indians. The intelligent observer of their character will confirm all that is predicted of their future condition, when he learns that the maxim, so well established in other places, “that an Indian cannot work,” has lost none of its universality in the practice of the Indians of the South; that there, too, the same improvidence and thirst for spirituous liquors attend the,, that have been the foes of their happiness elsewhere; that the condition of the common Indian is perceptibly declining, both in the means of subsistence, and the habits necessary to procure them; and that, upon the whole, the mass of the population of the Southern tribes are less respectable order of human beings now, than they were ten years ago. But the actual condition of these tribes is so important and interesting a part of the subject submitted to the committee, that they would fail in their duty to the House, if they passed it over without some further notice of it. The Cherokees are generally understood to have made further advances in civilization than the neighboring tribes, and a description of their real situation may make it of less importance to notice, in detail, the condition of the others. Upon this point, the committee feel sensible the want of that statistical and accurate information, without which, they are aware that they cannot expect their representations to be received with entire confidence. To supply this deficiency, however, they have sought information from every proper source within their reach, and do not fear that the general correctness of their statements will be confirmed by the most rigid scrutiny.

The sum of the present comforts and happiness of the Cherokees, the committee suppose, must be estimated in reference to their numbers; and, as it is the interest and happiness of the race of Indians, which claim the chief regard, they have though it proper to exhibit the relative condition of the Indians of unmixed blood, and that of the white man, and of the mixed race, which has been the consequence of a union between the two former. The committee have felt some difficulty in settling upon any principle, either of natural justice or of expediency, by which white men and members of the neighboring civilized societies, who have, at various periods, and from a variety of motives, settled among the Indians, can claim to be considered a part of them, and to share equally with them in the property and resources of the tribe. It has also appeared not improper to remark, that a mixed race, of distinct moral habits, many of whom may, with more propriety, be classed with the white than with the red race, do not seem to have an equal claim upon our sympathies with the pure blood of the aboriginal family. The population of what is called the Cherokee nation. East of the Mississippi, may be estimated at about 12,000 souls. Of these, about 250 are white men and women, who have married into Indian families. About 1200 are slaves; and the balance of the population consists of the mixed raced and the pure blooded Indians; the former bearing by a small propor-

{22} {Rep. No. 227}

tion to the latter caste. This classification of the inhabitants by their color, admitting it to be correct, would, in the absence of any further information, enable the acute observer of the Indian character to assign to their proper classes, whatever of improvement in the arts of civilized life, general intelligence, and wealth, are known to distinguish this tribe above others. The Cherokees have had, for more than a century, the advantage of the example and instruction of men reared in the bosom of civilized society. Many of the white men, who have at various time settled among them, possessed no small share of intelligence and practical acquaintance with the more simple mechanic arts. These were first traders, some of whom are said to have formed such attachments and connexions among them, as to induce them finally to become members of the tribe. Others were refugees from the justice of the whites and the restraints of regular law; but the greatest influx of white men, into the Cherokee country, occurred in the time of the Revolutionary war. The class which came in at that time, were chiefly frontier inhabitants of the neighboring colonies, who, like the Cherokees themselves, took the side of the mother country in that war. These were the ancestors on one side, of most of that mixed race, which now enjoys the principal influence in the tribe. The refugees during the Revolutionary war, are understood to have carried some property with them, and to have laid the foundations of most of the fortunes which are no enjoyed by their descendants. These men would, of course, seek to strengthen themselves by forming alliances with the most influential Chiefs; and the avarice of the one being combined with the authority of the other, easily secured to themselves the principal part of the slaves and other property plundered from the frontier inhabitants of the States in a long war. The property thus acquired has been since greatly increased by births among the slaves, and by the profits derived from the furnishing supplies and accommodation to travelers and traders upon the highways connecting the population of the neighboring States. Upon these roads are to be found nearly the whole wealth and civilization of the tribes. The white men, who have at more recent periods becomes members of the tribe, have been influence chiefly by mercenary motives. Avarice, and a spirit of accumulation, accompanied the first, as well as the last of those members of civilized society who have united their destinies with the Indians. The results of this mixture of two races, and of a society formed necessarily upon the principles of the superior one, have been natural, and such as might have been expected. Ambition has been recently engrafted upon avarice, with a generation and distinction, which generally accompany intelligence and wealth, could not be gratified in any other manner so well as in the official stations of a regular government. The possession of property also, of itself, prompted the necessity of securing its enjoyment, by some more stable institutions than Indian usages supplied. These two interests have been the simple and natural origin of the present Cherokee Government.

Humanity would be gratified to find, in the composition of this infant society, and in the operation of the government established by it, the means of improving and elevating the aboriginal race of the Indians; but the committee are constrained to believe, from the effects of the new institutions, and the sentiments and principles of most of those who have the direction of them, that

{23} {Rep. No. 227}

the Cherokee Indians, of pure blood, as they did not understand the design, so they are not likely to profit by the new order of things. From the time when the maxims and passions of the white men, who settle in the Cherokee country, began to infect the conduct and principles of the leading Chiefs; and more especially when the mixed race began to assert its superiority, may be dated the commencement of the deterioration of the mass of the tribe. That part of their ancient usages which secured an equal division of the presents and spoils which fortune threw in their way, has been slowly underminded. Wealth has long since become the principal badge of distinction among them, and those who possess it constitute a distinct class. However patriotic or public spirited some few individuals of those who were active in forming the new government may have been originally, they have at last, been compelled to yield to the general spirit of those around them; and the only tendency yet perceivable in the new institutions has been to enable those who control them to appropriate the whole resources of the tribe themselves. For this purpose, they have, in effect, take the regution of their trade into their own hands. They appear, also, to have established something in the nature of a loan office or band, in which are deposited the finds arising from the annuities payable by the Government; and these are lent out among themselves or their favorites. The committee have not been able to learn, that the common Indians have shared any part of the annuities of the tribe, for many years. The number of those who control the Government are understood not exceed twenty-five or thirty persons. These, together with their families and immediate dependents and connexions, may be said to constitute the whole commonwealth, so far as ant real advantages can be said to attend the new system of government. Besides this class, which embraces all the large fortune holders, there are about two hundred families, constituting a middle class, in the tribe. This class is composed of the Indians of mixed blood, and white men with Indian families. All of them have some property, and may be said to live in some degree of comfort. The committee are not aware that a single Indian, of unmixed blood, belong to either of the two higher classes of Cherokees but they suppose there may be a few such among them. The third class of the free population is composed of Indians, properly so denominated, who, like their brethren of the red race every where else, exhibit the same characteristic traits of unconquerable indolence, improvidence, and an inordinate love of ardent spirits. They are the tenants of the wretched huts and villages in the recesses of the mountains and elsewhere, remote from the highways and the neighborhood of the wealthy and prosperous. This appears to be the class indicated by a native Cherokee letter writer, as the “lowest class of peasantry,” and which he admits he does not include in his description of the progress of civilization among the Indians. It will be almost incredible to those who have formed their opinions of the condition of the Cherokees from the inflated general accounts found in the public journals of the date, when it is stated that this class constitutes, perhaps, nineteen out of twenty of the whole number of souls in the Cherokee country. The lowest estimate of their number which the committee have received from any source entitled to confidence, embraces nine-tenths of the whole. Some portion of the Indians forming this class, are less desponding in their temper, and exhibit a greater degree of energy than the others, in obtaining the means of subsistence: but still, this class of Cherokees, as a whole, are believed to approach nearer to a state of absolute desti-

{24} {Rep. No. 227}

tution than any other Indians of the South, except perhaps the Florida Indians, and a part of the Choctaws. The same causes which have contributed to elevate the character and increase the comforts of the mixed race, have tended to diminish the means of subsistence among the Indians of purer blood. Victims alike to the arts of the worthless white men from without, and to the crafty policy of their own rulers within, they have become a naked, miserable, and degraded race. Among the Creeks, what property they have, is more generally distributed, and the spirit of their warriors still exerts a feeble control over the conduct of their chiefs. The Chickasaws find some resource in the large annuities; but the less provident portion of the Cherokees often find themselves reduced to the necessity of relying upon wild fruits, birds, and fish, for the support of life. The moral condition of this class does not appear to compensate in any degree for their deficiency in the means of mere animal existence.

If this representation of the condition of the common Indian shall appear too highly colored, when contrasted with those flowing pictures of their happy and improving condition, with which the Christian world has been so long cheered, the committee can only say, in explanation, that both sides of the picture may still be substantially true, when viewed in reference to distinct classes. As wealthy and a lighter complexion do not necessarily imply any teachers have found an ample filed for their labors among the more fortunate portion of the tribe. They, as well as the benevolent traveler, may have regarded the higher class as a nucleus, around which, they might finally bring the naked and hungry wanderer, whom they rarely saw, except about the farms and doors of the wealthy, gradually to arrange and form themselves, by with the observance and practice of the customs and arts of civilized life. With such anticipations, however delusive, if the abject condition of the mass has been veiled from the public view, the pious fraud may be excused, if not justified. In accounting for the errors which so generally prevail upon this subject, it should not be overlooked, that missionary teachers to be useful to any portion of the tribe, must necessarily, in some degree, become parties to the views and interests of those in power. A different course would, without doubt, render their situations neither agreeable nor useful.

The nature and the degree of the opposition made to the policy of removal beyond the Mississippi, among the different classes, will be found to be graduated by their actual or supposed interests. It is obvious that the new Government party among the Cherokees are influenced by the most powerful incentives to human action, in wishing to maintain their present position. Every consideration of present affluence, of the means of future acquisition, and personal consequence, urge them naturally and powerfully to the employment of all their resources, whether or wealthy, or of their political relations with their own people, to effect the permanency of the institutions already established among the Cherokees, fearing the consequence of standing along against the policy of the United States, they have sent their emissaries among the Creeks, and acquired a manifest influence in their councils, upon the question of emigration. At home they have been, as

{25} {Rep. No. 227}

might have been expected, chiefly successful upon the inert, desponding and ignorant mass which has been described. A portion of the common Indians are understood to be opposed to emigration. Having no will or principle of action of their own, most of them yield themselves readily to the suggestions of those in authority among them. Many of them have been taught to entertain the most unnatural and improbable fancies in relation to the nature of the country West of the Mississippi, as well as of the motives of those who advise them to go there; yet the influence which produced, could no doubt destroy, this repugnancy to emigration. The middle class, who have property, as well as the more discerning of the common Indians, do not appear to have been so easily managed. They have been controlled through another medium, both among the Cherokees and Creeks. Besides the penalties and disabilities imposed by the laws upon those who enroll themselves for emigration, menaces of personal violence have not only been made, but in many instances they have been executed in the most barbarous manner, either by those highest in authority, or by their partisans; as will appear by the documents annexed to this report.

If the Committee have not wholly misstated the condition of the Southern Indians, it will be apparent, that the common feelings of humanity, besides the obligations incurred in the past intercourse of the Government with them, require, that whatever means may be constitutionally employed, should be liberally applied for their relief. If they remain where they are, the experience of two centuries has shown, that they eventually must perish. The assimilation of the two races, which has been commenced, cannot be relied on to save such masses as the Southern tribes present. The common Indian is already in danger of being regarded as a degraded caste in his own country. The experiments which have been made, do not furnish any very flattering evidence of the practicability of civilizing Indians, in large masses, under any circumstances; but the efforts commenced and superintended by such men as Elliot and Mayhews appear to have been, seem to be conclusive, as to the fate of the Indian when in contact with the whites. If the past could be recalled, and the eight of ten thousand Indians, including children, who, it is said, at one time, in Massachusetts and New Plymouth colonies, attended church regularly and orderly, supplied many of their own teachers, and a great portion of them being able to read and write, could be transplanted into some territory upon the Western frontier, and there, under the protection of the whites, but free from the actual and constant presence of a superiority which dispirits them; and from the actual and constant presence of a superiority which dispirits them; and from those vices which have always been their worst enemies, the problem of Indian civilization might be solved, at last, under the most favorable circumstances. If the condition of the Southern tribes is not as flattering as that of the Indians of New England, at the period alluded to, still, the improved condition and habits of the mixed race would be a great advantage in any attempt to elevate the condition of the common Indian, in a new country. Whatever civilization may be found among them, and the more there is of it the better, may be made the basis of a society West of the Mississippi, which have been the happiest effects upon the condition of all the Western tribes. This plan, at all events, offers a prospect, which may never again occur, of atoning, at last, for any wrongs inevitable incident to the settlement of the country by the white race, in a manner worthy of the character of the Government. To give the experiment every advantage in the power of the Government, their new country should be

{26} {Rep. No. 227}

secured to them in such a manner, that they would cease to be haunted with the prospect of future changes in their residence. The stimulant, so powerful and important in its effects upon the white man, of a separate and exclusive property in lands, with the privilege of transmitting it to their children, should be supplied to the Indians, in their new country, under such guards against the improvident disposition of them by the grantee, as prudence may dictate. To these provisions, it would seem, must be added ample means of moral instruction; without these, there can be little hope of reclaiming the present generation of the common Indians, or of securing the amelioration of the next.

The country which has heretofore been designated as proper to be allotted to the Indians, although not exhibiting the same variety of features with some portion of the country now occupied by then, possesses, in the outlet which it affords to a great western common and hunting ground, not likely to become the early abode of the white race, an advantage and relief to the adult Indians of the present generations, which, in the opinion of the committee, cannot be supplied in any other shape. If this country is secured to the greatest objection will be removed which has heretofore existed with any portion of the more sagacious Indians, having no more than a common interest in remaining where they are, to the plan of emigration. If such measures shall be resorted to as will satisfy the Indians generally, that the Government means to treat them with kindness, and to secure to them a country beyond the power of the white inhabitants to annoy them, the influence of their chiefs cannot longer prevent their emigration. Looking to this event, it would seem proper to make an ample appropriation, that any voluntary indication, on the part of the Indians, of a general disposition to remove, may be seconded efficiently by the Government.

In conformity with these suggestions, and to effect the object recommended in the message, the Committee bed leave to report a bill.


The following papers were furnished by the Department of War, upon a call of the Committee for any information in that Department upon the subject referred to in them:

Fort Bainbridge, Creek Nation

April 12th 1829

Hon. John H. Eaton, Secretary of War:

FRIEND AND BROTHER: We communicate to you, for the information of our great father, the President, that, always putting confidence in whatever he tells us to do, and knowing that he is fully powerful and able to do what he says, and that he would not give bad talks to his red children, but would certainly do every thing in his power for their future welfare; and knowing it to be the wish of our white brethren at large, that we should live well, but that it was impossible for us to do so while we were surrounded by the whites, to remedy which, our great gather gave us a country across the great waters of the Mississippi, promising protection and support to those that would go. This talk of our father made our hearts glad, and a great many of our people embraced the happy opportunity, and went over, and their safe arrival there, and the good description that they gave of the country,

{27} {Rep. No. 227}

induced others to go. A part of us that were willing to go, collected and took our encampment at this place. When we were leaving our houses, our people that were not going, exerted their utmost endeavors to prevent us from leaving this country; but, placing a firm reliance in the promised protection from our father, we paid but little attention to their menaces, being confident that it would please our father to learn that his children had taken hold on his talk. This so exasperated them, that they set no bounds to their resentments; and, accordingly, a part of desperadoes, headed by their chief, old He-ne-he-mathla, who was one of the most inveterate enemies that the United States had in the last war, attacked our camps, and after most barbarously beating two of our people, a man and a woman, they wantonly took off their ears, the said old chief, He-ne-he-mathla, exclaiming that, if the United States had promised them protection, he would see whether they would be protected or not. We earnestly beg that our great father send immediate assistance, or other we will be exposed to the fury of our countrymen, and may, eventually, be all massacred, as we are informed that they are again threatening of.

Your children,






Witness, John Hambly.


Extract of a letter from Colonel Crowell, to the Secretary of War dated June 19, 1829

“The leading chiefs of the nation have recently manifested such a determined opposition to emigration, through the influence of mischievous citizens of Alabama, that, unless the Government adopt measures (and they must be strong) to check that opposition, the business of emigration will progress slowly. They have recently passed laws to punish any of their people who shall dare to signify a willingness to emigrate; and such is the influence of the chiefs over their people, that many who would willingly remove, yes, I may say thousands, dare not let it be publicly known. They come to me secretly, and say, when I am ready to start, and prepared to protect them, they will go with me.”

From Captain William to Colonel McKenney.

WASHINGTON, October 8th, 1829.

SIR: I have been, as you know, for ten years residing in Alabama, and within the limits assigned to the Creek Indians, and have a thorough knowledge of the condition of these people. It is almost deplorable. I was induced to act as assistant to Colonel Brearley, to obtain their consent to go to Arkansas. I believe I did much. But, as I succeeded, I found a spirit of bitterness forming in the Chiefs against me. I was openly assaulted; knives were drawn upon me; and a gun was snapped at a young Indian who was enrolled to go; and for no other reason, but because he had enrolled.

{28} {Rep. No. 227}

One Indian at another place was actually killed! After I had got together about three hundred, at a camp near Lewis’s Stand, (you know the ground) Neumathla, a Chief, came into camp, heading about twenty Indians, and actually cut off the ears of some of the emigrants. Such as is the animosity of the Chiefs, that the common people are afraid to speak on the subject of emigration. They are threatened with death if they enroll; and hence their great caution. It is my firm belief, that nothing but a removal can save them. They are poor and wretched, and their annuity does them but little good. They have often been, as a people, on the borders of starvation. Nothing saved the lower towns, for two years, but the active exertions of the agent, Colonel Crowell, in buying corn on credit, and on his responsibility, and feeding them.

I have been to their country west of Arkansas. It is as fine and fertile as any on earth. The Creeks who are there could not be persuaded to come back: nothing could induce them to return. I never saw much change for the better in any people, or people happier or more contented. I believe three-fourths of the Creek nation would go, at a word, and gladly, but for the influence I have referred to. Nothing is so powerful with a common Indian as the fear of his Chief. It is but for his Chief to speak, and he is silent. It is lord and vassal; no medium.

I am, with great respect, &c.




Extracts of a letter from General John Coffee to the Secretary of Warm of 16th November, 1829.

“Just before I left the Creek Nation, a man by the name of John Dannily had been run from his town by the threats of Old Ma-nor-wa at a ball play. Ma-nor-wa told his men that Dannily must be killed; that he talked of going to Arkansas, and was trying to persuade his friends to go with him; that he should be killed, and his property taken, and his children should be raised up as other Indians were, and then they would comply with the customs of the nation; and that this should be the fate of all his men who spoke of going to Arkansas. This information was given him by a friend, and he immediately fun off, and came to the agency.” “This man has recently had the brother Dannily murdered, under the plausible pretext of his being a witch.”


Extract of a letter from Gen. John Coffee to the Secretary of War, of the 4th January, 1830.

“These people [the Creeks] are much at a loss what to do; they are kept in perfect ignorance of the designs of the upper towns; they are willing to take the President’s advice, and remove tot eh West, on the terms offered then, but they are afraid that the upper towns will sell the country, and their claims will not be respected.”

{29} {Rep. No. 227}

Extract of a letter from Middleton Muckey, Choctaw Interpreter, to the Secretary of War, dated 27th November, 1829, Choctaw Nation

“I was put in possession of the contents of your letter on the 31st ult. To Col. Ward, United States’ Agent to the Choctaws, and was ordered by him to interpret and fully explain the nature of the laws of Mississippi that were about to be extended over them, and the bad consequences that would attend, as they were not prepared to live under said laws. I have advised them, on all occasions, to make the best arrangement with the Government they possibly can, and emigrate to the west of the Mississippi. They would, the great mass of them, go, if it was not that there are three half-breed chiefs, one to each district; they are all opposed to any thing like emigration, or any thing that is for the good of their nation; they know that they can live under the laws and become citizens of the State, but it is not the case with all; therefore, I think that, if right inducements were held out, with a little good management, a great many of them would go west. They are very much in the spirit of moving to the West; if they were encouraged by the Government, I think a great many of them would go very soon. There are three chiefs that are recognised; though they have all been displaced, yet they have some standing among their people, and can lead them to do what is for their good.”


Extracts of a letter from Colonel Montgomery to the Secretary of War.

CHEROKEE AGENCY, 31ST October, 1828.

“I had occasion to mention to you several times, the personal hostility which those people had expressed against Rogers and Maw, on account of their mission to this country, but had hoped that it would end in empty threats, especially, after they understood that those men were in the employ, and entitled to the protection, of the United States’ Government. But as that time has become alarming to those who are opposed to the emigration business, and as several had enrolled, and a considerable number, especially in some of the most influential families, they seem to have come to the determination to put Rogers (who was must active) down at all events; and on Friday last, James Speer and Archy Foreman, two half breeds, came to the Agency, where they stayed until evening, and I suppose, learned that Rogers had gone over to Calhoun; Foreman crossed the River in the evening, Speer not until dark, when he came into the house where Rogers was sitting, and without speaking a single word to him, struck him on the head with a rock, supposed to weigh near four pounds, which it is thought he took over the river with him, on purpose. There were present two or three whitemen, who endeavored to prevent further violence, but were kept off by Archy Foreman, who, they state, said that Speer was his brother-in-law, and should do as he pleased. Rogers states that when he came to his understanding, he saw Speer sitting in piazza, and asked him the cause of the assault; Speer said he had not given him his satisfaction, but if he would only name Arkansas, or emigrants, that he would; Rogers replied that was his business, and he was obliged to do so; he again struck him on the head with a large rock. Rogers is badly cut and bruised on the head,

{30} {Rep. No. 227}

but is about again. This, without protection from the Government, will put a check, if not an end, to the emigration, here. The hostility is not confined to Rogers and Maw, only, but to all concerned; and all those who have enrolled, or talk of it. Several, I understand, say they would enroll, but are afraid of personal abuse. I have promised them protection, but fear I shall not be able to perform, as I have no force at my command.

“I had engaged two of those who have enrolled, viz: Major Walker and Fishtail, to act upon those around this place, but the threats are such, that I fear they will decline.”

“Just while writing, William Petit, a half breed, who enrolled yesterday, arrived, having been driven from his house before day, by a drunken party; he states that they came to his house just before day, making loud threats; he caught up his gun and made his escape, and has sent for his family.”


Extract of a letter from James Rogers to the Secretary of War, dated Calhoun, December 26, 1828.

“The Cherokees opposed to the emigration of the Indians East of the Mississippi hold out their enmity towards those emigrating to the West of it. No longer than last night, an attack was made on Major John Walker b Archibald Foreman, who is now High Sheriff of Ammokee district, and who was heretofore Marshal of this now independent nation of Cherokees East of the Mississippi.

“On yesterday I rode about a mile form the Cherokee agency, and was attack by the Path-Killer, an Indian, who struck me several times with rocks, and who avowed his intention to kill me, and any one who would aid me in my business of enrolling the Cherokees for Arkansas.

“Major Walker is an emigrant, and was beat in consequence of his exertions in the cause.”


Copy of a letter from Col. Montgomery to the Secretary of War.

CHEROKEE AGENCY, 3d, January 1829.

SIR: On Christmas day, Major Walker, an emigrant, unfortunately went to an Indian dance about four miles from this: as soon as he arrived, Archy Foreman, (the same who was concerned in the assault on Capt. Rogers with Speers) and others, commenced an assault on him, and beat him so that his life was despaired of, or at least doubted for several days. A physician was called, and sent out to attend to him, and I have declined reporting the case, until I found whether he would live or die; he has so far recovered, as to return to the agency.

It is thus that those Indians are left to exercise their own pleasure on the subject of emigration.

Respectfully, your obedient servant,



{31} {Rep. No. 227}


To provide for the removal of the Indian Tribes within any of the States and the Territories, and for their permanent settlement West of the river Mississippi.

Be it enacted by the Senate and House of representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby, authorized to cause so much of any territory belonging to the United States, West of the river Mississippi, and not within the limits of any State or organized Territory, as he may judge necessary, to be divided into a suitable number of districts, for the permanent residence of such tribes of Indians, or any individuals or the same, coming within the provisions of this act, as may choose to settle upon them.

SEC. 2. And be it further enacted, That it shall be lawful for the President of the United States to exchange any, or all such districts so laid off, with any tribe or individuals thereof, now residing within the limits of any State or territory, and with which the United States have any existing treaties, for the whole or any part of the land claimed or occupied by any such tribe.

SEC. 3. And be it further enacted, That the President shall be authorized to assure any tribe, or any individual of the same, with which any such exchange of lands may be made, that the United States will forever secure to him or them, and to his or their posterity, the exclusive possession and enjoyment of the territory which may be received in exchange by him or them, according to the provision of this act; and for that purpose, that a patent shall issue either to each tribe collectively, or to the members of it, as shall be found most satisfactory, conveying to him or them the absolute property in the same, with such limitations and conditions only, as shall be necessary to secure the reversionary interest in the lands to the United States, and guard them against improvident alienations by the Indians themselves.

SEC. 4. And be it further enacted, That the President of the United States shall be, and he hereby is, authorized to make any new arrangement or adjustment of boundary, by treaty or otherwise, with any Indian tribes having claims to any part of the district or territory which he may find most suitable to the conditions and wishes of any tribe within the United States or Territories, and which may remove and avail themselves of the means provided by this act, as shall be in his power, with the consent of the tribe whose claims may be affected thereby.

SEC. 5. And be it further enacted, That if, upon any of the lands now occupied by the Indians, and to be exchanged for others lying West of the Mississippi river there shall be such improvements as add real value to the land occupied and claimed by an individuals of such tribe, it shall and may be lawful for the President to cause such value to be ascertained by appraisement, or otherwise, and to cause such appraised value to be paid to the individuals claiming such improvement: Provided, There be such a disposition of said claims, that the Government shall not be made liable to purchase or pay for the same a second time.

SEC. 6. And be it further enacted, That, upon the making of any such exchange as is contemplated by this act, it shall and may be lawful for the

{32} {Rep. No. 227}

President of the Unites States to cause such aid and assistance to be furnished to the emigrants, as may be necessary and proper to enable them to remove to, and settle in, the country for which they may have exchanged, and also, to give them such aid and assistance as may be necessary for their support and subsistence for the first year after their removal.

SEC. 7. And be it further enacted, That it shall and may be lawful for the President of the United States to cause such tribe or nation to be protected at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other persons whatever.

SEC. 8. And be it further enacted, That it shall and may be lawful for the President to have the same superintendence and care over any tribe or nation in the country to which they may remove, as are now given to him by the several laws regulating intercourse with the Indian tribes.

SEC. 9. And be it further enacted, That, for the purpose of giving effect to the provisions of this act, the sum of dollars is hereby appropriated, to be paid out of any money in the Treasury, not otherwise appropriated.