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kee tribe, by Messrs Wirt and Sergeant, it determined, at the January term of 1831, that in that form it had not jurisdiction of the subject-matter in dispute.
The Supreme Court had jurisdiction between two States of the confederacy, and also between a foreign State and one of the States of the Union. The Cherokee tribe, however, was neither a foreign State nor a member of the confederacy, but a domestic dependent nation in a state of pupilage, and in a relation to the United States resembling that of a ward to his guardian..
The prayer of the bill was, therefore, denied,* and the Cherokee tribe was left another year exposed to the encroachments and oppressions of its neighbors in spite of the plain and positive stipulation of treaties.
In addition to the countenance given by the General Government to these arbitrary proceedings on the part of Georgia, a change was adopted in the mode of distributing the annuity stipulated to be paid to the Cherokee tribe, with the view of depriving them of the means of legally resisting the encroachments upon their territory.
By the treaties between the United States and that tribe, certain sums of money, amounting in the whole to twelve thousand dollars, were agreed to be paid annually to the Cherokee Nation,' and pursuant to those stipulations the payments hitherto had been punctually made by the Government to the chieftains representing the nation, and who,
* Vide Opinion, second part, page 229.
in the treaties with that tribe, had been considered as the proper agents to transact business in its behalf.
The present administration having adopted a new policy respecting the Indians, and regarding them as subject to the State within whose limits they were, it resolved to carry out the principle, and orders were issued from the War department not to pay the annuities as formerly to the chieftains of the Cherokee tribe, but to distribute them among the nation,-paying to each individual his proportion. The number of Cherokees east of the Mississippi being between fourteen and fifteen thousand, the share of each individual would come to less than a dollar, and as the tribe extended over a large tract of country, the expenses of each Indian's travelling to the agency would more than absorb the sum to which he is entitled.
The effect of the order was, therefore, a virtual withholding of the annuity, and it was regarded as an additional violation of the treaties between that tribe and the Government of the United States.
The Cherokees generally refused to receive the annuities in this manner, and it consequently remained in the hands of the agents of the United States.
The withholding the annuity and the encroachments made upon their territory by the State authorities, did not in the least facilitate the accomplishment of the object aimed at by the State. The Cherokees, conscious of their rights, and strong in the support of public opinion, refused to re
move from their territory or even of War (Mr Eaton) were appointto treat for its cession. Excited ed commissioners to negotiate by a conviction of their having with this tribe for a cession of been unjustly treated, they re- their territory. The council of garded the Government of the the tribe was accordingly invited United States itself in an un- to meet them in September, at friendly light, and communicated Dancing River Creek, in the with its agents only in the shape Choctaw country. A very numerof complaint and remonstrance. ous assemblage of Indians took In the mean time, the State of place-it being computed that Georgia pursued its course re- between four and five thousand gardless of the public opinion of were present, a number comthe country. prehending the effective population of the tribe. Upon commencing the negotiation, it was soon discovered, that the Choctaws were divided into two parties, in relation to the cession of their territory. One party opposing the conclusion of any additional treaties, and the other contending that it would be better for the tribe to yield to the wishes of the Government of the United States, before the Government of Mississippi should commence a system of oppression with the view of coercing them into a cession. After a protracted negotiation, during which the two parties were almost on the point of coming to blows, those opposed to a cession retired from the council, and a treaty was concluded with the remaining chieftains, by which all the Choctaw territory east of the Mississippi was ceded to the United States, upon the following terms:
Convinced that a judicial inquiry into its pretensions would result in their complete refutation and overthrow, the State Government studiously sought to bring the Federal Courts into contempt. Their authority over the subject was constantly denied, and the legal and constitutional mode provided for the peaceable execution of the laws and treaties of the United States, was thus defeated by the self-will of a State, permitted and even encouraged to pursue its reckless career, by the novel views adopted by those entrusted with the administration of the Federal Government as to its powers and its obligations.
While the Government of the United States thus thwarted its own ends, and lost its influence over the Cherokee tribe, by the indifference manifested towards its engagements, it was more successful in its efforts to persuade the Choctaws a numerous tribe in the States of Alabama and Mississippi-to remove beyond the Mississippi, and to cede their lands east of that river to the United States. Shortly after the adjournment of Congress, in 1830, General John Coffee and the Secretary
Reservations were allowed to all persons, not exceeding 40, cultivating 50 or more acres of land, of one section each: to 1,500 persons, of from 80 to 480 acres each, according to the quantity of land which they cultivated.
These reservations included improvements, and might be sold,
by permission of the President of the United States.
Ninety captains, who did not otherwise obtain one section each, were entitled to an additional half section each, which might be sold by permission of the President, or paid for by the United States, at fifty cents per acre, at the option of the captains.
All orphans were secured a quarter section, to be selected by the President, and sold for their benefit, under his direction.
All families who resided on their present improvements five years, were declared to be entitled to a patent for 640 acres for the head of the family, and 320 acres to each unmarried child over ten years of age, and 160 acres for each under ten, contiguous to their parent's land.
Some 50 or 100 special reservations were made in favor of individuals of the nation. The United States also stipulated to pay $50,000 for the support of common schools in the Choctaw nation. $400,000 to be paid in 20 annual instalments. $250 a year, to four principal chiefs, each for 20 years. $500 a year to one chief, to preside, in case of the nation adopting a republican form of government. The United States also agreed to pay for the building a council house, a house for each chief, and three churches, to be also used as schoolhouses to provide for the salary of three teachers and preachers, for twenty years: for three smith's shops, to be supported sixteen years; one millwright for five years; and sundry small payments to secretaries, speakers,
&c. They also agreed to present one rifle to each emigrating warrior, after his arrival in their new country, and to deliver 2,100 blankets, 1,000 wheels and carts, 1,000 axes, 1,000 hoes, 400 looms, 1,000 ploughs, to be divided among them in Arkansas, and to furnish one ton of iron and two hundred weight of steel, annually, to each district for sixteen years.
The Indians were to be removed at the expense of the United States, in wagons and steamboats, and to be supported one year after their arrival at their new homes. Their new country, according to the boundaries described in the treaty of Washington City, in 1825, and the jurisdiction and government of all persons and property within its limits, it was agreed should be secured to them forever; no State or Territory should ever extend its jurisdiction over any part of it; the nation should always be governed by its own laws, which, however, were not to be inconsistent with those of the United States. The United States stipulated to protect the Choctaws from domestic strife and from foreign enemies, as if they were citizens of the United States. Navigable streams were declared to be free to the Choctaws, and the United States were authorised to establish roads through their territory. Provision was made for the apprehension and punishment of trespassers and offenders; and Choctaws on the territory ceded, were authorised to become citizens of the United States, upon declaring their intention, and were thereupon entitled
to a reservation of 640 acres each. The propriety of admitting the nation to a representation by their delegate on the floor of Congress, after they shall become sufficiently civilized, is submitted in the treaty to the consideration of Congress.
sippi. This doctrine was that by which the President and his Cabinet undertook to justify their neglect to execute the provisions of the Indian intercourse act, and the decisive vote of the Senate, by which the preamble was stricken out, was a striking condemnation on the part of that body of the novel principle, which the President sought to introduce into
The treaty was then confirmed, 33 ayes and 12 nays, and the Choctaw nation commenced its removal beyond the Mississippi river.
The Choctaws agreed to remove in 1831, 1832, and 1833, and in the mean time, the United States were to keep out intruders; the administration of the Governand the commissioners promised ment. On a division of the Senthat the Government would use ate, the vote stood 32 for striking its influence with the State of out the preamble, and 11 in its Mississippi, to suspend the opera- favor. tion of her laws, and also with Alabama not to extend her laws into the nation, for the space of three years. The country, however, in the mean time was to be surveyed as soon as practicable, by prudent, discreet surveyors.'* Upon this treaty being submitted to the Senate for its ratification, that body determined to inquire minutely, into the circumstances under which it was made, and a resolution was accordingly introduced, calling for any letters received from the Choctaw chieftains in relation to the treaty. An inquiry was also instituted into the character of the territory west of the Mississippi, destined for the Choctaw tribe. These inquiries having terminated satisfactorily, a resolution was then introduced, disavowing the principle contained in the preamble of the treaty, by which the President of the United States is represented as saying, that he cannot protect the Choctaw people from the operation of the laws of the State of Missis
* For Treaty, vide second part, 84th page.
A similar treaty was made with their neighbors, the Chickasaws, and the provisions of both these treaties may be deemed highly favorable to the Indians, whose subsistence in their new homes was secured one year at the expense of the United States. This policy, adopted by the administration towards the Aborigines, however, was not carried into effect without serious opposition in Congress.
The trial and impeachment of Judge Peck, occupied the attention of both Houses at the commencement of the session, and no opportunity was given to bring the subject up until the beginning of February. On the 7th of that month, Mr Everett presented a petition from sundry citizens of Massachusetts, praying the repeal of the Indian laws of last session. It not being in order to discuss petitions the day they are pre
sented, it was laid over until the next Monday, when Mr Everett gave notice, that he should call for its consideration. On the 14th of February, accordingly, it was announced from the Chair, as before the House for its disposal.
Mr Everett rose, and was proceeding to address the Chair, when
Mr Tucker interposed and demanded that the question of 'consideration' be put, and the Speaker announced this to be the question.
[This question precludes debate on any motion, unless the House decides in favor of its consideration.]
The yeas and nays on the 'consideration' being ordered, Mr Everett said, it was with great regret, he was obliged to say, that he considered the demand for the question of consideration, out of order; the petition had been received by the House, and if this motion were entertained by the Chair, it would cut off all debate on the petition, which Mr Everett said he had a right to discuss, on presenting it, if he thought proper.
The Speaker said the House had a right to decide, whether it would consider the gentleman's motion-it had a right to refuse to receive the petition itself.
Mr Everett. But the House has received the petition, Mr Speaker.
The Speaker said the petition had been received and laid on the table; that the House had a right now to say, whether it would consider the gentleman's motion
touching its reference, and therefore the demand for the question of consideration was in order; and he proceeded to refer to the rules, and explain his construction of them, to show the propriety of his decision.
Mr Bell asked, if the House decided in favor of 'consideration,' what time would the discussion be in order-could it be continued from day to day, or would it be limited?
The Speaker replied, it could only be continued to-day, and the next days on which the presentation of petitions would be in order, (namely, on Monday alone.)
Mr Everett again rose, and said he felt himself under the necessity of appealing from the decision of the Chair, on the correctness of entertaining the demand for the question of consideration; and he proceeded in support of his appeal at some length-arguing that this was no motion, or proposition offered to the House, but simply a petition from a portion of his constituents, which they in the exercise of their constitutional right, had presented to the House through him, their representative. He had laid it on the table, under the rule; it came up to-day, as a matter of course; its consideration required no motion, and he had made none; the matter before the House was the petition itself, and to that he had a right to speak; it was a constitutional right, to which the rule of consideration could not apply, and could not cut off.
Mr Tucker, in a few remarks, defended his call for the question of 'consideration,' and his motive