Part 24

From a view of the acts referred to and the uniform practice of the Government it is manifest that until recently it has never been maintained that the right of jurisdiction by a State over Indians within its territory was subordinate to the power of the Federal Government. That doctrine has not been enforced nor even asserted in any of the States of New England where tribes of Indians have resided, and where a few of them yet remain. These tribes have been left to the undisturbed control of the States in which they were found, in conformity with the view which has been taken of the opinions prevailing up to 1789 and the clear interpretation of the act of 1802. In the State of New York, where several tribes have resided, it has been the policy of the Government to avoid entering into quasi treaty engagements with them, barely appointing commissioners occasionally on the part of the United States to facilitate the objects of the State in its negotiations with them. The Southern States present an exception to this policy. As early as 1784 the settlements within the limits of North Carolina were advanced farther to the west than the authority of the State to enforce an obedience of its laws. Others were in a similar condition. The necessities, therefore, and not the acknowledged principles, of the Government must have suggested the policy of treating with the Indians in that quarter as the only practicable mode of conciliating their good will. The United States at that period had just emerged from a protracted war for the achievement of their independence. At the moment of its conclusion many of these tribes, as powerful as they were ferocious in their mode of warfare, remained in arms, desolating our frontier settlements. Under these circumstances the first treaties, in 1785 and 1790, with the Cherokees, were concluded by the Government of the United States, and were evidently sanctioned as measures of necessity adapted to the character of the Indians and indispensable to the peace and security of the western frontier. But they can not be understood as changing the political relations of the Indians to the States or to the Federal Government. To effect this would have required the operation of quite a different principle and the intervention of a tribunal higher than that of the treaty-making power.

To infer from the assent of the Government to this deviation from the practice which had before governed its intercourse with the Indians, and the accidental forbearance of the States to assert their right of jurisdiction over them, that they had surrendered this portion of their sovereignty, and that its assumption now is usurpation, is conceding too much to the necessity which dictated those treaties, and doing violence to the principles of the Government and the rights of the States without benefiting in the least degree the Indians. The Indians thus situated can not be regarded in any other light than as members of a foreign government or of that of the State within whose chartered limits they reside. If in the former, the ordinary legislation of Congress in relation to them is not warranted by the Constitution, which was established for the benefit of our own, not of a foreign people. If in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control. To maintain a contrary doctrine and to require the Executive to enforce it by the employment of a military force would be to place in his hands a power to make war upon the rights of the States and the liberties of the country--a power which should be placed in the hands of no individual.

If, indeed, the Indians are to be regarded as people possessing rights which they can exercise independently of the States, much error has arisen in the intercourse of the Government with them. Why is it that they have been called upon to assist in our wars without the privilege of exercising their own discretion? If an independent people, they should as such be consulted and advised with; but they have not been. In an order which was issued to me from the War Department in September, 1814, this language is employed:

All the friendly Indians should be organized and prepared to cooperate with your other forces. There appears to be some dissatisfaction among the Choctaws; their friendship and services should be secured without delay. The friendly Indians must be fed and paid, and made to fight when and where their services may be required.

To an independent and foreign people this would seem to be assuming, I should suppose, rather too lofty a tone--one which the Government would not have assumed if they had considered them in that light. Again, by the Constitution the power of declaring war belongs exclusively to Congress. We have been often engaged in war with the Indian tribes within our limits, but when have these hostilities been preceded or accompanied by an act of Congress declaring war against the tribe which was the object of them? And was the prosecution of such hostilities an usurpation in each case by the Executive which conducted them of the constitutional power of Congress? It must have been so, I apprehend, if these tribes are to be considered as foreign and independent nations.

The steps taken to prevent intrusion upon Indian lands had their origin with the commencement of our Government, and became the subject of special legislation in 1802, with the reservations which have been mentioned in favor of the jurisdiction of the States. With the exception of South Carolina, who has uniformly regulated the Indians within her limits without the aid of the General Government, they have been felt within all the States of the South without being understood to affect their rights or prevent the exercise of their jurisdiction, whenever they were in a situation to assume and enforce it. Georgia, though materially concerned, has on this principle forborne to spread her legislation farther than the settlements of her own white citizens, until she has recently perceived within her limits a people claiming to be capable of self-government, sitting in legislative council, organizing courts and administering justice. To disarm such an anomalous invasion of her sovereignty she has declared her determination to execute her own laws throughout her limits--a step which seems to have been anticipated by the proclamation of 1783, and which is perfectly consistent with the nineteenth section of the act of 1802. According to the language and reasoning of that section, the tribes to the South and the Southwest are not only "surrounded by settlements of the citizens of the United States," but are now also "within the ordinary jurisdiction of the individual States." They became so from the moment the laws of the State were extended over them, and the same result follows the similar determination of Alabama and Mississippi. These States have each a right to claim in behalf of their position now on this question the same respect which is conceded to the other States of the Union.

Toward this race of people I entertain the kindest feelings, and am not sensible that the views which I have taken of their true interests are less favorable to them than those which oppose their emigration to the West. Years since I stated to them my belief that if the States chose to extend their laws over them it would not be in the power of the Federal Government to prevent it. My opinion remains the same, and I can see no alternative for them but that of their removal to the West or a quiet submission to the State laws. If they prefer to remove, the United States agree to defray their expenses, to supply them the means of transportation and a year's support after they reach their new homes--a provision too liberal and kind to deserve the stamp of injustice. Either course promises them peace and happiness, whilst an obstinate perseverance in the effort to maintain their possessions independent of the State authority can not fail to render their condition still more helpless and miserable. Such an effort ought, therefore, to be discountenanced by all who sincerely sympathize in the fortunes of this peculiar people, and especially by the political bodies of the Union, as calculated to disturb the harmony of the two Governments and to endanger the safety of the many blessings which they enable us to enjoy.

As connected with the subject of this inquiry, I beg leave to refer to the accompanying letter from the Secretary of War, inclosing the orders which proceeded from that Department, and a letter from the governor of Georgia.

ANDREW JACKSON.

Washington, February 26, 1831. To the Senate of the United States:

The inclosed report of the Secretary of War is herewith inclosed in answer to the resolution of the Senate of yesterday's date.

ANDREW JACKSON.

To the Senate of the United States:

I present for the consideration of the Senate articles of agreement entered into and concluded by commissioners duly appointed on the part of the United States and the chiefs of the Menominee tribe of Indians at Green Bay. Various attempts were made to reconcile the conflicting interests of the New York Indians, but without success, as will appear by the report made by the Secretary of War. No stipulation in their favor could be introduced into the agreement without the consent of the Menominees, and that consent could not be obtained to any greater extent than the articles show.

Congress only is competent now to adjust and arrange these differences and satisfy the demands of the New York Indians. The whole matter is respectfully submitted.

ANDREW JACKSON. February 28, 1831.

To the Senate of the United States:

I submit to the consideration of the Senate of the United States articles of agreement and convention concluded this day between the United States, by a commissioner duly authorized, and the Seneca tribe of Indians resident in the State of Ohio.

ANDREW JACKSON. February 28, 1831.

February 28, 1831. The Speaker of the House of Representatives of the United States:

I lay before the House of Representatives a treaty recently concluded with the Choctaw tribe of Indians, that provision may be made for carrying the same into effect agreeably to the estimate heretofore presented by the Secretary of War to the Committee of Ways and Means. It is a printed copy as it passed the Senate, no amendment having been made except to strike out the preamble. I also communicate a letter from the Secretary of War on this subject.

ANDREW JACKSON.

March 1, 1831. To the Senate of the United States:

I transmit herewith, for the use of the Senate, printed copies of the treaties which have been lately ratified between the United States and the Choctaw Indians and between the United States and the confederated tribes of the Sacs and Foxes and other tribes.

ANDREW JACKSON.

(The same message was sent to the House of Representatives.)

WASHINGTON, March 2, 1831. To the Senate and House of Representatives of the United States:

I communicate to Congress a treaty of commerce and navigation between the United States and the Emperor of Austria, concluded in this city on the 28th March, 1830, the ratifications of which were exchanged on the 10th of February last.