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mestic animals and implements of husbandry." This treaty bears date August 7th, 1790. Thus it appears, that the United States at that time offered inducements to the Creeks to be. come cultivators of the soil, and to appropriate it for the purposes of civilized life, instead of using it as mere hunting ground. If they yielded to those inducements, the public faith is pledged to sustain them in that course. Our government is bound, our national character plighted, to encourage them in the wise resolution they have taken, to become civilized men, and to preserve the remnant of their tribe under the protection of this republic.

This pledge has been accepted, and on our part it only remains to fulfil it. In 1796, another treaty was concluded between the United States and the Creeks, and they bargained for blacksmiths and strikers, to be furnished by the United States ; thus plainly showing their intention to accept the humane offer of civilization from our hands.* With these obligations subsisting on the part of the United States, an agreement was entered into with Georgia in 1802,t by which the United States agreed to extinguish at their expense for the use of Georgia, the Indian title to all the lands within the limits of the state,“ as early as the same could be peaceably obtained on reasonable terms." The consideration given by Georgia on her part, was the relinquishment of all claims to the vacant territory in the west, included within her boundaries as described in her charter, the proclamations of 1763, and the commission to Gov. Wright; but which was claimed, together with the western lands, within the boundaries of Massachusetts, Connecticut, New-York, Virginia, and North and South Carolina, as the common property of the confederacy, wrested from Great Britain by the united arms and treasure of the thirteen colonies, and ceded to the United States when their independence was acknowledged by the treaty of Paris. After the revolutionary war had closed, the other states, influenced by patriotic motives, and desirous of preventing all intestine disputes, as well as to hinder the undue aggrandizement of any one state, followed the example given by New-York during the existence of that contest, and relinquished to the government all their back lands, either with or without an equivalent. Georgia, more fortunate, or less generous, than her sister states, delayed her assent to that cession until 1802, when it obtained more favourable terms

* Vide 1 vol. U. S. Laws, B. and D. ed. p. 365. * Ib. 490.


than the other members of the confederacy, whose titles to the western territory rested upon the same footing as her own.

This cession, even if her title had been clearer than it was, Georgia was bound to make, by motives of gratitude and public duty, to the confederacy, whose arms bad achieved her independence almost without her aid. Upon her making it, however, she received an ample equivalent. 1,250,000 dollars were paid to the state from the first receipts from the lands; in 1802, a treaty was made with the Creeks, by which a large portion of their lands was ceded to the United States and vested in Georgia ; in 1805, another portion was ceded in like manner. These cessions, together with the sums paid under the convention, cost the United States nearly $8,000,000—a sum exceeding one half of the expense of the Louisiana purchase; and Georgia has received 15,000,000 of acres, to which the Indian title has been extinguished.* During the last war, a portion of the Creeks, instigated by hostile emissaries, and influenced by misrepresentations as to the intentions of the United States with regard to the Indians, took up arms against the whites, and were severely chastised by the army under Gen. Jackson. In 1814, articles of agreement were concluded with the whole nation, including the hostile party, by which peace was restored, a certain portion of Indian territory ceded, and in the second article, the United States guaranty the integrity of all the Creek territory not ceded in the first article.t

This treaty, or agreement, the Creeks considered as definitive, and as settling the boundaries within which they were to reside as a civilized people, according to the promises of our government. In conformity with that sentiment, shortly after that treaty, they passed laws constituting it a capital crime to propose any farther alienation of their land.

Under these circumstances, Gov. Troup became governor of Georgia; and upon his instalment in the executive chair, he commenced a crusade against the general government, for the purpose of driving it into hostility with the Indians. The indecorous temper and style of his note to the late President and Secretary of War, would be passed by as unworthy of observation, did they not evince the character of the person at the head of that unfortunate state. They prove him to be entirely regardless of public opinion and public faith, and show

* Vide Report by Mr. Calhoun to Congress, 1824.
+ Vide 1 vol, U. S. Laws, B. and D. ed. p. 701.

a necessity of energetic measures on the part of the constitutional authorities, to preserve the quiet and the character of the country.

These steps, at that time, failed to produce the expected effect. The national authorities were neither to be bullied, nor driven into measures derogatory to the country, and the Creeks resolutely refused to part with another acre of their land. They said that they had sold all that they could spare, and that they only reserved what was sufficient for their comfort and subsistence.

In this state of things, as the executive of Georgia threatened to drive the Indians from their possessions by force, it became necessary to take into consideration the respective rights and obligations of the Creeks, the United States, and the state of Georgia.

The Creeks, on their part, had bound themselves not to sell their land, except to the United States, and they had acknowledged themselves to be under the protection of our government. The United States had encouraged them to commence the work of civilization, and to relinquish their vagrant habits; and the Creeks, in conformity with that benevolent policy, had begun to put on the character of a civilized people.

Again, the United States asserted a right to prevent any European power from purchasing the Indian title. This right was respected by the European powers ; it was sanctioned by their practice, and the Creeks had confirmed it by the treaty of New-York.* But this was only a contingent right of property, depending upon the consent of the Indians. It was merely a right to the ultimate dominion of the soil, i. e. the sovereignty, to the exclusion of civilized nations, and the absolute property upon the extinguishment of the Indian title. The colonies, before the revolution, and the states since that event, never conceived that they had a right to appropriate the soil without the consent of the aboriginal inhabitants. Treaties were made with them for that purpose, from the earliest settlements of the country. In some of the provinces, the Indian title was considered as complete, so that it might be transferred from an Indian to a white man without the consent of the government ; and the determination of Andross to subject those titles in New-England to a quit-rent or patent tax, caused a rebellion, which ended in his deposition and imprisonment. In other parts of the country, the colonists were compelled to purchase

* Vide 1 vol. U.S. Laws, p. 360.

through the governments. But in no province did the colonists conceive their title to be good, so long as the Indian title remained unextinguished. To the honor of the country be it recorded, that in no instance did the public authorities sanction the abominable doctrine, that civilization gave to the white man a right to exterminate or enslave the aboriginal, or to confiscate or appropriate the property and land of his tribe. These Indians, whatever may be thought of that wisdom of the Providence who so ordered it, were the original occupants and owners of the country. They had enjoyed it from immemorial time. Our ancestors, indeed, had a right to land on this continent, and to occupy as much vacant soil as was necessary

for their accommodation ; but neither they, nor any other men, had a right to drive the aboriginals from their possessions. This right of accommodating themselves, by occupying vacant land in a wilderness, must be so exercised as not to interfere with the rights of others. It is founded upon a presumption, that the Deity intended the soil for cultivation ; but the Deity also created the Indian to enjoy the soil after his manner; and unnecessarily to deprive him of his limited enjoyment, would not only be unjust, but cruel. Such are the great and immutable principles of morality and natural jurisprudence.

If, then, we could not, when unshackled by treaties, expel these people from their possessions ; surely we cannot now, after defining their boundaries, acknowledging and guarantying their right to this land, encouraging them to quit their vagrant habits for those of cultivators, and when we have land in abundance without interfering with them. Should we not, by such an act of cold-blooded, deliberate, unnecessary perfidy, justly incur the scorn and indignation of mankind? This question is not answered by a reference to the articles of agreement between the United States and Georgia. The United States only had the right to purchase the Indian title, when they were willing to sell it, and this was all they could transfer to Georgia. On the other hand, this right was encumbered with an obligation to respect and guaranty that title. The Indians had a right, by treaty, to our protection and guaranty, and to our assistance in the great work of civilizing themselves. They also had a right of property, by the law of nature, to the soil, modified, indeed, by our right to occupy such portions as they did not need; but as to what was necessary for them, their right was absolute, and not to be affected by any claim of civi

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mits, subject only to this condition, that if they conclude to part with their land, it shall be sold to the United States. Until they do that, they may use it as hunters or agriculturists. They may even divide it among themselves, and become a civilized people ; and this government was bound, before the agreement with Georgia, and is now bound, to aid them in effecting that desirable object.

Georgia, therefore, could not acquire any right by its agreement with the United States, except a right thus limited ; and she took it, subject to all its accompanying obligations.

We should not have been thus minute in enforcing principles, which we had imagined to be axioms in morals and jurisprudence, had not the doctrines advanced by the governor and congressional delegation of Georgia been directly opposite to these plain, and, what we must still consider, demonstrable principles. The authorities of that state contend, that upon the execution of the agreement of 1802, the fee simple of the Indian lands was vested in the state of Georgia, and that the aboriginals after that time, only occupied the soil by the sufferance and at the mercy of the United States.

This position we have shown to be indefensible. The fee simple of the Indian lands was not affected by the agreement of 1802. The Creeks were not parties to that treaty. Hence, if the fee simple belonged to them, it was not transferred; and if the United States owned it, they transferred it, subject to the Indian title, and encumbered with all the obligations they had assumed.

But, in truth, the United States had no fee, and transferred none. They agreed to extinguish the Indian title within the state of Georgia, " when it could be peaceably obtained upon reasonable terms." By this cautious limitation of the agreement, the United States manifested their respect for the aboriginal title, and for the obligations imposed by former treaties ; and Georgia only acquired a right to the land when that title was extinguished, with the consent of the Indians, the government of the state well knowing, at the time of making the agreement, that the United States were bound to civilize the Indians, and to attach them to the soil as farmers and as herdsmen, and that, as a necessary consequence, a portion of their land would be always retained by them. The right of occupancy, to which Georgia would restrict the Creek title, and still farther narrow it by making it temporary, might at any time, even before those treaties, have been changed by the civilization of the Indians into a complete right of property. VOL. I.


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