By John Bartlett Meserve.
No theme in Oklahoma history has awakened such interest as has the matter of the removal of the unwilling Five Civilized Tribes of Indians, a century ago. It provides the major historic background of this commonwealth. Just as truly as the history of our common country reaches back to Hastings and Runeymeade, so the thoughtful interest of the student of Oklahoma history and lore, finds himself concerned with the early history of Georgia, Alabama and Mississippi.
The situation among the tribes in the southeastern states had gone from bad to worse until a crisis was presented when Andrew Jackson became president. General Jackson, perhaps understood the Indian, his vision of things and his mode of life, better than did any man in public life at that time. The Indian question became the first object of concern of the famous Tennessean and in his first message to Congress in December 1829, the whole Indian controversy with the southeastern states, was laid before Congress with his advice for action. This message though firm was not acrimonious and the action taken by Congress immediately thereafter, inaugurated the policy of the removal of these tribes to an independent state of their own forming. The thoughts expressed by President Jackson indirectly concern our formative days.
1"The condition and ulterior destiny of the Indian tribes within the limits of some of our States have become objects of much interest and importance. It has long been the policy of Government to introduce among them the arts of civilization, in the hope of gradually reclaiming them from a wandering life. This policy has, however, been coupled with another, wholly incompatible with its success. Professing a desire to civilize and settle them, we have, at the same time, lost no opportunity to purchase their lands and thrust them farther into the wilderness. By this means they have not only been kept in a wandering state, but
begin to look upon us as unjust and indifferent to their fate. Thus, though lavish in its expenditure upon the subject, Government has constantly defeated its own policy, and the Indians, in general, receding further and further to the West, have retained their savage habits. A portion, however, of the Southern tribes, having mingled much with the whites and made some progress in the arts of civilized life, have lately attempted to erect an independent government within the limits of Georgia and Alabama. These States, claiming to be the only sovereigns within their territories extended their laws over the Indians, which induced the latter to call upon the United States for protection.
"Under these circumstances the question presented was whether the general Government had a right to sustain those people in their pretensions. The Constitution declares that 'no new States shall be formed or erected within the jurisdiction of any other State' without the consent of its legislature. If the general Government is not permitted to tolerate the erection of a confederate State within the territory of one of the members of this Union, against her consent, much less could it allow a foreign and independent government to establish itself there.
"Actuated by this view of the subject, I informed the Indians inhabiting parts of Georgia and Alabama that their attempt to establish an independent government would not be countenanced by the Executive of the United States and advised them to emigrate beyond the Mississippi or submit to the laws of these States.
"Our conduct toward these people is deeply interesting to our national character. Their present condition, contrasted with what they once were, makes a powerful appeal to our sympathies. Our ancestors found them the uncontrolled possessors of these vast regions. By permision and force they have been made to retire from river to river, and from mountain to mountain, until some of the tribes have become extinct and others have left but remnants to preserve, for a while, their once terrible names. Surrounded by the whites, with their arts of civilization, which, by destroying the resources of the savage, doomed him to weakness and decay, the fate of the Mohegan, the Narragansett, and the Delaware is fast overtaking the Choctaw, the Cherokee and the Creek. That fate surely awaits them if they remain within the limits of the States does not admit of doubt. Humanity and national honor
demand that every effort should be made to avert so great a calamity. It is too late to inquire whether it was just in the United States to include them and their territory within the bounds of the new States whose limits they could control. That step cannot be retraced. A State cannot be dismembered by Congress, or restricted in the exercise of her constitutional power. But the people of these States and of every State, actuated by feelings of justice and regard for our national honor, submit to you the interesting question whether something cannot be done, consistently with the rights of the States, to preserve this much injured race?
"As a means of effecting this end, I suggest, for your consideration, the propriety for setting apart an ample district west of the Mississippi, and without the limits of any State or Territory now formed, to be guaranteed to the Indian tribes as long as they shall occupy it, each tribe having a distinct control over the portion designated for its use. There they may be secure in the enjoyment of governments of their own choice, subject to no other control from the United States than such as may be necessary to preserve peace on the frontier and between the several tribes. There the benevolent may endeavor to teach them the arts of civilization; and, by promoting union and harmony among them, to raise up an interesting commonwealth, destined to perpetuate the race and to attest the humanity and justice of this Government.
"This emigration should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and seek a home in a distant land. But they should be distinctly informed that, if they remain within the limits of the States, they must be subject to their laws. In return for their obedience, as individuals, they will, without doubt, be protected in the enjoyment of those possessions which they have improved, by their industry. But it seems to me visionary to suppose, that in this state of things, claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountains or passed them in the chase. Submitting to the laws of the States, and receiving, like other citizens, protection in their person and property, they will, ere long, become merged in the mass of our population."
A message of like import had been conveyed to Congress by President Monroe and later by President John Quincy Adams so we cannot ascribe to Jackson the authorship of a separate, independent state for the Indians. In accordance with the presidential suggestions and after a most acrimonious debate, Congress passed the2 Act of May 28, 1830, declaring a Federal policy favorable to the removal of the Indians and placed in the hands of President Jackson the power to initiate the necessary steps to secure exchanges of lands with any tribe "residing within the limits of the states or otherwise."3 The extended debates in the United States Senate on April 9, 1830, touching the controversial questions involved in the enactment of this law, are highly illuminative and disclose the claims of the southeastern states to be relieved of these independent tribal governments within their borders.
It had been the farcical practice of the Government from the beginning, to exercise authority over the Indians by treaties negotiated with the tribes. These treaties conferred no vested rights and were effective, not as treaties, but as Acts of Congress. They in no manner impaired the power of Congress to further legislate, even in violation of the terms of the treaties. These treaties were not contracts and the moral obligations to observe them were often violated. This policy was pursued until March 3, 1871, when Congress, by law provided, "that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty." As far back as the4 treaty of Hopewell, of November 28, 1785, with the Cherokees, the leaders of this tribe recognized the rights of Congress to regulate their tribal affairs. Section IX of this treaty provided, "For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." Then came the famous agreement with the State of Georgia of 1802; whereby, in consideration of the relinquish-
ment of its claims to the territories of Alabama, and Mississippi, the Government pledged itself to extinguish all title to Indian lands within that state. The State of Georgia insisted that the power to legislate over the Cherokees which had been reserved in the Hopewell treaty had automatically inured to the benefit of that State and the Georgia legislature had proceeded to act accordingly in a rather, unconscionable manner. The justice and propriety of this alleged transfer of power from the general Government to the State of Georgia were matters which did not apparently concern the authorities of the State of Georgia but which in those years of militant "States Rights", were accorded full recognition. It must be borne in mind that during those initial years, interference by the Federal Government and particularly by its Courts, was defied by the States. Against the aggressive acts of the States, the Government confessed its inability to cause a suspension of their laws even though their enforcement operated to defeat the solemn engagements which the Government had made with the tribes. The strong central Government as we know it today did not then exist and in appraising the executive actions of Andrew Jackson, this equation must be given full effect.
Our Indian poicy has been a series of rank inconsistencies. The Nation that had so boldly declared "that all men were created equal and endowed with certain inalienable rights" and that had so promptly supplemented its organic law with an engagement that no man's "life or property should be taken without due process of law," evidently did not have the original American in thought. Much of the criticism of President Jackson and of his administration of Indian affairs might be softened by a more complete appraisal and understanding of the impact of his contemporary life.