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fee-simple in the soil, nor political sovereignty over it. It cut them down to vassals, but, by a legal solecism, they were regarded as a sort of free vassals. So long as the royal governments remained, they had the usufruct of the public domain—the right of fishing, and hunting, and planting upon it, and of doing certain other acts of occupancy ; but this right ceased just as soon, and as fast, as patents were granted, or the public exigency required the domain. The native chiefs were quieted with presents from the throne, through the local officers, and their ideas of independence and control were answered by the public councils, in which friendships were established, and the public tranquillity looked after. Private purchases were made from the outset, but the idea of a public treaty of purchase of the soil under the proprietary and royal governors, was not entertained before the era of William Penn.
It remained for the patriots of 1775, who set up the frame of our present government, by an appeal to arms, to award the aboriginal tribes the full proprietary right to the soil they respectively occupied, and to guarantee to them its full and free use, until such right was relinquished by treaty stipulations. So far, they were acknowledged as sovereigns. This is the first step in their political exaltation, and dates, in our records, from the respective treaties of Fort Pitt, September 17, 1778, and of Fort Stanwix, of October 22, 1784. The latter was as early after the establishment of our independence, as these tribes—the Six nations, who, with the exception of the Oneidas, sided with the parent country-could be brought to listen to the terms of peace. They were followed by the Wyandots, Delawares, and Chippewas, and Ottowas, in January, 1785; by the Cherokees, in November of the same year; and by the Choctaws and Shawnees, in January, 1786. Other western nations followed in 1789; the Creeks did not treat till 1790. And from this era, the system has been continued up to the present moment. It may be affirmed, that there is not an acre of land of the public domain of the United States, sold at the land offices, from the days of General Washington, but what has been acquired in this manner. War, in which we and they have been frequently involved, since that period, has conveyed no territorial right. We have conquered them, on the field, not to usurp territory, but to place them in a condition to observe how much more their interests and permanent prosperity would be, and have ever been, promoted by the plough than the sword. And there has been a pronipt recurrence, at every mutation from war to peace, punctually, to that fine sentiment embraced in the first article of the first treaty ever made between the American government and the Indian tribes, namely, that all offences and animosities “ shall be mutually forgiven, and buried in deep oblivion, and never more be had in remembrance."*
# Treaty of Fort Pitt, 1778.
The first step to advance the aboriginal man to his natural and just political rights, namely, the acknowledgment of his right to the soil, we have mentioned; but those that were to succeed it were more difficult and complex in their bearings. Congress, from the earliest traces of their action, as they appear in their journals and public acts, confined the operation of the civil code to the territory actually acquired by negotiation, and treaties duly ratified by the Senate, and proclaimed, agreeably to the Constitution, by the President. So much of this public territory as fell within the respective State lines, fell, by the terms of our political compact, under State laws, and the jurisdiction of the State courts ; and as soon as new tracts of the Indian territory, thus within State boundaries, were acquired, the State laws had an exact corresponding extension until the whole of such Indian lands had been acquired. This provided a definite and clear mode of action, and if it were sometimes the subject of doubt or confliction, such perplexity arose from the great extension of the country, its sparsely settled condition, and the haste or ignorance of local magistrates. And these difficulties were invariably removed whenever the cases came into the Supreme Court of the United States.
Without regard to the area of the States, but including and having respect only to the territories, and to the vast and unincorporated wil. derness, called the “ Indian country,” Congress provided a special code of laws, and from the first, held over this part of the Union, and holds over it now, full and complete jurisdiction. This code was designed chiefly to regulate the trade carried on at those remote points between the white and red men, to preserve the public tranquillity, and to provide for the adjudication of offences Citizens of the United States, carrying the passport, license, or authority of their government, are protected by their papers thus legally obtained ; and the tribes are held answerable for
1 their good treatment, and if violence occur, for their lives. No civil process, however, has efficacy in such positions; and there is no compulsory legal collection of debts, were it indeed practicable, on the Indian territories. The customs and usages of the trade and intercourse, as established from early times, prevail there. These customs are chiefly founded on the patriarchal system, which was found in vogue on the settlement of the country, and they admit of compensations and privileges founded on natural principles of equity and right. The Indian criminal code, whatever that is, also prevails there. The only exception to it arises from cases of Americans, maliciously killed within the “ Indian country,” the laws of Congress providing, that the aggressors should be surrendered into the hands of justice, and tried by the nearest United States courts.
These preliminary facts will exhibit some of the leading features of the mixed system alluded to. Its workings were better calculated for
the early stages of society, while population was sparse and the two races, as bodies, kept far apart, than for its maturer periods. As the intervening lands became ceded, and sold, and settled, and the tribes themselves began to put on aspects of civilisation, the discrepancies of the system, and its want of homogeneousness and harmony, became'more apparent. Throughout the whole period of the administrations of Washington, and John Adams, and Jefferson, a period of twenty years, the low state of our population, and the great extent and unreclaimed character of the public domain, left the Indians undisturbed, and no questions of much importance occurred to test the permanency of the system as regards the welfare of the Indians. Mr. Jefferson foresaw, however, the effect of encroachments beyond the Ohio, and with an enlightened regard for the race and their civilisation, prepared a new and consolidated code of all prior acts, with some salutary new provisions, which had the effect to systematize the trade and intercourse, and more fully to protect the rights of the Indians. This code served, with occasional amendments, through the succeeding administrations of Madison, Monroe, and John Quincy Adams, into that of General Jackson, when, in 1834, the greatly advanced line of the frontiers, the multiplied population, and necessarily increased force of the Indian department, and the large amount of Indian annuities to be paid, called for its thorough revision, and a new general enactment was made.
Previously, however, to this time, during the administration of Mr. Monroe, it was perceived that the Indian tribes, as separate communities, living in, and surrounded by, people of European descent, and governed by a widely different system of laws, arts, and customs, could not be expected to arrive at a state of permanent prosperity while thus locally situated. The tendency of the Saxon institutions, laws, and jurisprudence, was to sweep over them. The greater must needs absorb the less. And there appeared, on wise and mature reflection, no reasonable hope to the true friends of the native race, that they could sustain themselves in independency or success as foreign elements in the midst of the State communities. It was impossible that two systems of governments, so diverse as the Indian and American, should co-exist on the same territory All history proved this. The most rational hope of success for this race, the only one which indeed appeared practical on a scale commensurate with the object, was to remove them, with their own consent, to a position entirely without the boundaries of the State jurisdictions, where they might assert their political sovereignty, and live and develope their true national character, under their own laws.
The impelling cause for the action of the government, during Mr Monroe's administration, was the peculiar condition of certain tribes, living on their own original territories, within the State boundaries, and who were adverse to further cessions of such territory. The question assumed its principal interest in the State of Georgia, within which por. tions of the Creek and Cherokee tribes were then living. About ten millions acres of lands were thus in the occupancy of these two tribes. As the population of Georgia expanded and approached the Indian settlements, the evils of the mixed political system alluded to began strongly to evince themselves. In the progress of the dispersion of the human race over the globe, there never was, perhaps, a more diverse legal, political, and moral amalgamation attempted, than there was found to exist, when, in this area, the descendants from the old Saxons, north-men and Hugenots from Europe, came in contact with the descendants (we speak of a theory) of the idle, pastoral, unphilosophic, non-inductive race of central Asia, living in the genial climate and sunny valleys of Georgia and Alabama.
The American government had embarrassed itself by stipulating at an early day, with the State of Georgia, to extinguish the Indian title within her boundaries, at the earliest practicable period, when it could be done “peaceably and on reasonable conditions. The Indians, as they advanced in agriculture, became averse to sell. The Georgians, as they increased in numbers, became importunate for the territory to which they had, in this event, the reversionary right. The President was frequently importuned by the State authorities. The Indians were frequently brought to consider the subject, which was one that increased its importance with years.
We have deemed it proper to put this matter in its right attitude in relation to the great question of Indian removal ; and as furnishing, as it did, reasons for the early consideration and action of the government. It is not our intention to pursue the Georgia question disjunctively-we have neither time nor space for it here, and will only further premise, that it is susceptible of some very different views from those often premised of it.* That it was one of the prominent considerations which led the administration of Monroe to take up betimes the general question of the Indian tribes, is well known and remembered, and apparent from a perusal of the public documents of the era.
Governed by such considerations, Mr. Monroe communicated a special message to Congress on the 27th of January, 1825, recommending the removal of all the tribes within the States and Territories, and providing for their future "location and government.” This is the official date and foundation of the plan of removal, which has been so generally,
* We have only space to say here, that the cession of the Georgia lands was sub sequently made by the Lower Creeks under the chieftaincy of General M'Intosh, who was the first to affix his signature to it. For this act he paid the penalty of his life ; the Upper Creeks and their adherents, having assembled in arms, surrounded his house, and fired three hundred balls into it, killing its unhappy, but distinguished inmate.
and may we not add, so successfully and propitiously to the best interests of the tribes, carried into effect. “Being deeply impressed with
. the opinion," observes this venerated statesman, who has, years since, gone to join the patriot spirits who achieved our independence—“that the removal of the Indian tribes from the land which they now occupy, within the limits of the several States and Territories, to the country lying westward and northward thereof, within our acknowledged boundaries, is of very high importance to the Union, and may be accomplished on conditions, and in a manner, to promote the interests and happiness of those tribes, the attention of the government has been long drawn, with great solicitude, to the object.
“For the removaliof the tribes within the limits of the State of Georgia, the motive has been peculiarly strong, arising from the compact with that State, whereby the United States are bound to extinguish the Indian title to the lands within it, whenever it may be done peaceably, and on reasonable conditions.
“ In the fulfilment of this compact, I have thought that the United States should act with a generous spirit, that they should omit nothing which should comport with a liberal construction of the instrument, and likewise be in accordance with the just rights of those tribes. From the view which I have taken of the subject, I am satisfied that, in the discharge of these important duties, in regard to both the parties alluded to, the United States will have to encounter no conflicting interests with either : on the contrary, that the removal of the tribes from the Territories which they inhabit, to that which was designated in the message at the commencement of the session, which would accomplish the object for Georgia, under a well digested plan for their government and civilisation, in a mode agreeable to themselves, would not only shield them from impending rain, but promote their welfare and happiness. Experi ence has clearly demonstrated that, in their present state, it is impossible to incorporate them, in such masses, in any form whatever, into our system. It has also demonstrated, with equal certainty, that without a timely anticipation of, and provision against, the dangers to which they are exposed, under causes which it will be difficult, if not impossible, to control, their degradation and extermination will be ineritable.”
We have underscored the last two sentences, because they express in forcible and just language, the experience of the American government, in relation to the subject, after an experiment of fifty years, dating from 75, and lie, indeed, at the foundation of the present Indian policy. It is also the experience of sound and calm observers, who have watched the operation of our laws and customs upon the isolated Indian communities in the States. Every year has exemplified the futility of raising them up to the European standard in industry, in intelligence or character, while thus situated; nor, indeed, has it been practicable to shield