try, and the destruction and annihilation of all Indian rights, until, by a recent act of the same body, the courts of the State itself are occluded against the Indian sufferer, and he is actually denied an appeal even to foreign tribunals, in the erection and in the laws of which he had no voice, there to complain of his wrongs. If he enters the hall of Georgia's justice, it is upon a surrender at the threshold of all his rights The history of this last law to which I have alluded, is this. When the previous law of the State, dividing the Indian lands by lottery was passed, some Indians made an appeal to one of the judges of the State, and applied for an injunction against the proceeding; and such was the undeniable justice of their plea, that the judge found himself unable to refuse it, and he granted the injunction sought. It was the injunction which led to the passage of this act: to some of the provisions of which I now invite the attention of the Senate. And first, to the title of the act: "A bill to amend an act entitled an act more effectually to provide for the government and protection of the Cherokee Indians residing within the limits of Georgia: and to prescribe the bounds of their occupant claims: and also to authorize grants to issue for lots drawn in the late land and gold lotteries." Ah, sir, it was the pursuit of gold which led the Spanish invader to desolate the fair fields of Mexico and Peru" and to provide for the appointment of an agent to carry certain parts thereof into execution; and to fix the salary of such agent, and to punish those persons who may deter Indians from enrolling for emigration, passed 20th December, 1833." Well, sir, this bill goes on to provide, "That it shall be the duty of the agent or agents appointed by his excellency the Governor, under the authority of this or the act of which it is amendatory, to report to him the number, district, and section of all lots of land subject to be granted by the provisions of said act, which he may be required to do by the drawer, or his agent, or the person claiming the same; and it shall be the duty of his excellency the Governor, upon the application of the drawer of any of the aforesaid lots, his or her special agents, or the person to whom the drawer may have bona-fide conveyed the same, his agent or assigns, to issue a grant therefor; and it shall be the duty of the said agent or agents, upon the productions of the grant so issued as aforesaid by the grantor, his or her agent, or the person, or his or her agent to whom the said land so granted as aforesaid may have been bona-fide conveyed, to deliver possession of said granted lot to the said grantee, or person entitled to the possession of the same under the provisions of this act, or the act of which this is amendatory, and his excellency the Governor is hereby authorized upon satisfactory evidence that the said agent is impeded or resisted in delivering such possession, by a force which he cannot overcome, to order out a sufficient force to carry the power of said agent or agents fully into effect, and to pay the expenses of the same out of the contingent fund: provided nothing in this act shall be so construed as to require the interference of the said agent between two or more individuals claiming possession, by virtue of titles derived from a grant from the State to any lot.' Thus after the State of Georgia had distributed the lands of the Indians by lottery, and the drawers of prizes were authorized to receive grants of the land drawn, and with these grants in their hand were authorized to demand of the agent of the State, appointed for the purpose, to be put in possession of the soil thus obtained; and if any resistance to their entry should be made-and who was to make it but a poor Indian ? -the Governor was empowered to turn out the military force of the State, and enable the agent to take possession by force, without trial, without judgment, and without investigation. But, should there be two claimants of the prize, should two of the ticket holders dispute their claim to the same lot, then no military force was to be used. It was only when the resistance was by an Indian-it was only when Indian rights should come into collision with the alledged rights of the State of Georgia, that the strong hand of military power was instantly to interpose. The next section of the act is in these words: "And be it further enacted by the authority aforesaid, That if any person dispossessed of a lot of land under this act, or the act of which it is amendatory, shall go before a justice of the peace or of the inferior court, and make affidavit that he or she was not liable to be dispossessed under or by any of the provisions of this or the aforesaid act, and file said affidavit in the clerk's office of the superior court of the county in which said land shall lie, such person upon giving bond and security in the clerk's office for the costs to accrue on the trial, shall be permitted within ten days from such dispossessing to enter an appeal to said superior court, and at said court the judge shall cause an issue to be made up between the appellant and the person to whom possession of said land was delivered by either of said agents, which said issue shall be in the following form." [Mr. Cuthbert, of Georgia, here interposed: and having obtained Mr. CLAY'S consent to explain, stated that he had unfortunately not been in the Senate when the honorable Senator commenced his speech; but had learned that it was in support of a memorial from certain Cherokee Indians in the State of Georgia, who desired to emigrate. He must be permitted to say, that the current of the honorable Senator's remarks did not suit remarkably well the subject of such a memorial. A memorial of a different kind had been presented, and which the Committee on Indian Affairs had before it, to which the Senator's remarks would better apply. The present discussion was wholly unexpected, and it seemed to him not in consistency with the object of the memorial he had presented.] I am truly sorry the honorable gentleman was absent when I commenced speaking. I delayed presenting the memorial because I observed that neither of the Senators from Georgia were in their seats, until the hour when they might be expected to be present, and when one of them (Mr. King) had actually taken his seat. If the honorable Senator had been present he would have heard me say that I thought the presentation of the memorial a fit occasion to express my sentiments, not only touching the rights of these individual petitioners, but on the rights of all the Indian tribes, and their relations to this government. And if he will have but a little patience he will find that it is my intention to present propositions which go to embrace both resolutions.' 1 And here, Mr. President, let me pause and invite the attention of the Senate to the provision in the act of Georgia which I was reading -that is, that he may have the privilege of an appeal to a tribunal of justice, by forms and by a bond with the nature and force of which he is unacquainted; and that then he may have--what besides? I invoke the attention of the Senate to this part of the law. What, I ask, does it secure to the Indian? His rights? The rights recognized by treaties? The rights guarantied to him by the most solemn acts which human governments can perform? No. It allows him to come into the courts of the State, and there to enjoy the benefit of the summary proceeding called in the act "an appeal!"-but which can never be continued beyond a second term; and when he comes there, what then? He shall be permitted to come into court and enter an appeal, which shall be in the following form : 66 A. B., who was dispossessed of a lot of land by an agent of the State of Georgia, comes into court, and admitting the right of the State of Georgia to pass the law under which agent acted, avers that he was not liable to be dispossessed of said land, by or under any one of the provisions of the act of the General Assembly of Georgia, passed 20th December, 1833, 'more effectually to provide for the protection of the Cherokee Indians residing within the limits of Georgia, and to prescribe the bounds of their occupant claims, and also to authorize grants to issue for lots drawn in the land and gold lotteries in certain cases, and to provide for the appointment of an agent to carry certain parts thereof into execution, and fix the salary of such agent, and to punish those persons who may deter Indians from enrolling for emigration,' or the act amendatory thereof, passed at the session of the legislature of 1834: 'in which issue the person to whom possession of said land was delivered shall join; and which issue shall constitute the entire pleadings between the parties; nor shall the court allow any matter other than is contained in said issue to be placed upon the record or files of said court; and said cause shall be tried at the first term of the court, unless good cause shall be shown for a continuance, and the same party shall not be permitted to continue said cause more than once, except for unavoidable providential cause: nor shall said court at the instance of either party pass any order or grant any injunction to stay said cause, nor permit to be engrafted on said cause any other proceedings whatever." " At the same time we find, by another enactment, the judges of the courts of Georgia are restrained from granting injunctions, so that the only form in which the Indian can come before them is in the form of an appeal; and in this, the very first step is an absolute renunciation of the rights he holds by treaty, and the unqualified admission of the rights of his antagonist, as conferred by the laws of Georgia; and the court is expressly prohibited from putting anything else upon the record. Why? Do we not all know the reason? If the poor Indian was allowed to put in a plea stating his rights, and the court should then decide against him, the cause would go upon an appeal to the supreme court; the decision could be re-examined, could be annulled, and the authority of treaties vindicated. But, to prevent this, to make it impossible, he is compelled, on entering the court, to renounce his Indian rights, and the court is forbidden to put anything on record which can bring up a decision upon them. Mr. President, I have already stated that, in the observations I have made, I am actuated by no other than such as ought to be in the breast of every honest man, the feelings of common justice. I would say nothing, I would whisper nothing, I would insinuate nothing, I would think nothing, which can, in the remotest degree, cause irritation in the mind of any one, of any Senator here, of any State in this Union, I have too much respect for every member of the confederacy. I feel nothing but grief for the wretched condition of these most unfortunate people, and every emotion of my bosom dissuades me from the use of epithets that might raise emotions which should draw the attention of the Senate from the justice of their claims. I forbear to apply to this law any epithet of any kind. Sir, no epithet is needed. The features of the law itself; its warrant for the interposition of military power, when no trial and no judgment has been allowed; its denial of any appeal, unless the unhappy Indian shall first renounce his own rights, and admit the rights of his opponent-features such as these are enough to show what the true character of the act is, and supersede the necessity of all epithets, were I even capable of applying them. The Senate will thus perceive that the whole power of the State of Georgia, military as well as civil, has been made to bear upon these Indians, without their having any voice in forming, judging upon, or executing the laws under which he is placed, and without even the poor privilege of establishing the injury he may have suffere by Indian evidence: nay, worse still, not even by the evidence of a white man! Because the renunciation of his rights precludes all evidence, white or black, civilized or savage. There then he lies, with his *R property, his rights, and every privilege which makes human existence desirable, at the mercy of the State of Georgia; a State, in whose government or laws he has no voice. Sir, it is impossible for the most active imagination to conceive a condition of human society more perfectly wretched. Shall I be told that the condition of the African slave is worse? No, sir; no, sir. It is not worse. The interest of the master makes it at once his duty and his inclination to provide for the comfort and the health of his slave: for without these he would be unprofitable. Both pride and interest render the master prompt in vindicating the rights of his slave, and protecting him from the oppression of others, and the laws secure to him the amplest means to do so. But who, what human being, stands in the relation of master or any other relation, which makes him interested in the preservation and protection of the poor Indian thus degraded and miserable? Thrust out from human society, without the sympathies of any, and placed without the pale of common justice, who is there to protect him, or to defend his rights ? Such, Mr. President, is the present condition of these Cherokee memorialists, whose case it is my duty to submit to the consideration of the Senate. There remains but one more inquiry before I conclude. Is there any remedy within the scope of the powers of the federal government as given by the constitution? If we are without the power, if we have no constitutional authority, then we are also without responsibility. Our regrets may be excited, our sympathies may be moved, our humanity may be shocked, our hearts may be grieved, but if our hands are tied, we can only unite with all the good, the Christian, the benevolent portion of the human family, in deploring what we cannot prevent. But, sir, we are not thus powerless. I stated to the Senate, when I began, that there are two classes of the Cherokees; one of these classes desire to emigrate, and it was their petition I presented this morning, and with respect to these, our powers are ample to afford them the most liberal and effectual relief. They wish to go beyond the Mississippi, and to be guarantied in the possession of the country which may be there assigned to them. As the Congress of the United States have full powers over the territories, we may give them all the guaranty which Congress can express for the undisturbed possession of their lands. With respect to their case there can be no question as to our nowers. |