R. P. Letcher and T. P. Mcore-- William Anderson.

JAN. 6, 1837.]

William Anderson.

[H. OF R.

ston, the ancestor of the petitioners obtained a permit from one of the headmen of the tribe to pass on his contemplated voyage through the Indian territory, accompanied with every assurance of protection and safety. The community in which he had resided from the fall of 1787 until May, 1788, were on terms of perfect amity, and indeed had been from the treaty of Hopewell up to that time. And, further, this treaty of Hopewell, it should not be forgotten, contained the following remark. able provisions, with regard to our relations towards the Cherokees, in articles 9 and 10, to wit: That "the United States in Congress assembled shall have the exclu sive right of regulating the trade with the Indians, and managing all their affairs, in such manner as they think proper" and, again: "Until the pleasure of Congress be made known respecting the 9th article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees, to trade with them; and they shall be protected in their persons and property, and kindly treated."

No other intercourse regulations had been entered into with this tribe previous to 1788, and none, except one or two of a very partial bearing, up to the general intercourse law of 1802, which has regulated our intercourse with all the Indian tribes from that to the present time. It is true there were other stipulations in the several treaties concluded, respectively, at Holston in 1791, at Philadelphia in 1792 and 1794, and at Tellico in October, 1798, but none of a general nature touching this point. There is still stronger evidence of our peaceable relations to be found in the proclamation of Congress to which I have already alluded. This proclamation was issued, by a resolution of Congress, the 2d day of September, 1788, in four or five months after the plunder of the boat and murder of Brown and the crew.

Indians and this country. It will not, therefore, be necessary to consider, in the argument which I now propose to submit, whether this Government should or should not indemnify her citizens for depredations committed upon their property by the enemies of the country, when in a state of actual war with another Power. The Commiton Indian Affairs, by which this bill was reported, state, in its accompanying report, that this claim rests upon the same facts and circumstances, or, rather, that it is identical in point of proof, with the claim of the heirs of James Brown, which was allowed at a former session of Congress. I shall, therefore, in this discussion, refer to the facts in that case, as reported by the Committee on Indian Affairs in 1832, and shall take the facts as reported by that committee, at least, as prima facie true. These claimants allege that they should be indemnified as the legal representatives of William Anderson, deceased, for the loss of property plundered from their ancestor, James Brown, by the Cherokee Indians, in 1788. It will be recollected by every one that, by the terms of the treaty of Hopewell, concluded in 1785, that portion of territory which now composes a considerable part of Middle Tennessee was ceded to this country by the Cherokees, and was immediately thrown open for the reception and occupation of our citizens. Among the early adventurers who manifested a disposition to establish a permanent home in this part of the Western wilderness was James Brown, the ancestor of these claimants. In the fall of 1787, he and his family, carrying with them all their valuable property, arrived on the banks of the Holston, more than two hundred miles distant, by land, from the place of their destination. Believing that a passage down the Tennessee river could be more easily effected, and be, at the same time, less perilous, than a trip across the mountains, early in the following May (1788) they embarked, with a considera-This proclamation, a copy of which I now hold in my ble amount of property, on board a boat, which they had prepared in the mean time, and descended the Tennessee river. While floating down this river, after they had reached the limits of the Indian territory, through which they had necessarily to pass, by an act of the ba sest perfidy, under the disguise of friendship, they were ere suddenly surrounded by upwards of seventy Cherokee warriors. Mr. Brown himself, two of his sons, and five boatmen, "the only adult males on board the boat,' were instantly slain, Mrs. Brown, her three daughters, and two minor sons, made captives, and their property plundered and carried off by the Indians. It is for the loss of a small portion of this property, thus violently seized, that one of these captive girls who afterwards became Mrs. Anderson, and her orphan children, now ask an indemnity from the Government. Can the Government, consistently with its past policy, its future interest, and the justice of this individual application, allow the sought-for indemnity? It is, in the first place, I believe, admitted that, in time of peace, there is a claim on our Government for the protection of the person and property of the citizen, and for spoliations committed by any other than our own citizens. But it is contended, in argument, that we have not sufficiently shown that a state of peace then existed, and that the very act of hostility of which we complain is evidence of the want of a state of actual peace; and that a state of peace or war with an Indian tribe can only be determined by the character of the acts of one or both of the parties! I infer, however, that a state of peace existed at that period, from the history of the times, the cotemporary conduct of a large community of our citizens who resided in the vicinity of this tribe of Indians, the conduct of James Brown him. self, and from direct and unequivocal declarations of the Congress of the United States, contained in a proclamation of that year on this very subject.

hand, recognises and reaffirms the obligations and binding efficacy of the treaty of Hopewell, without the slightest complaint with regard to any breach of the treaty, or of any depredations on the part of the Indi ans; in which, also, they threaten heavy penalties against any of the citizens of the United States who should dare to infringe any of the articles of that treaty. It is evident, from the language of this proclamation, that Con. gress regarded the Cherokees in a state of amity at that time; and, from what we have stated already, it is equally evident that our citizens who resided on the borders of that tribe so regarded our relations at the same period. These considerations seem to me to exclude the idea of the existence of a state of war at the date of the loss sustained by the petitioners. The several reports of the Committee on Indian Affairs on this subject, in summing up the testimony on this point, fully concur in the same opinion. "This is an application," says the able chairman of this committee, "to be paid the value of property taken with force by the Cherokee Indians prior to the enactment of laws regulating trade and intercourse with the Indian tribes, and in time of peace between the Cherokees and the United States." Then the act of which we complain has not been regarded by the committee, and I think cannot be looked upon as creating a state of partial war, or, as some of the gen tlemen have styled it, a state of quasi war, so as to exclude this claim from a favorable consideration by Congress, under the established policy of the Govern

ment.

If this position were correct, you cannot conceive of any possible case in which those who had sustained an injury in time of peace by Indian treachery and violence could obtain redress for the loss and outrage; for the obvious answer would be ever ready, that the Government does not indemnify her citizens against the depre

Prior to his departure from the settlement on the Hol-dations of an enemy committed in time of war.

VOL. XIII.-82

The act

of hostility complained of creates a state of Indian war, because Indians never make formal declarations of war, like civilized nations; therefore the indemnity in this particular case cannot be allowed. This position cannot be sustained in any point of view. Nor is it conceived

[JAN. 6, 1837.

was similar, in all its material circumstances, to the claim now under consideration. The loss was sustained by private individuals, while descending the Tennessee river, in the Cherokee territory, by the act of that tribe of Indians, while in a state of peace. Mr. S. said, I might cite many other cases in point, from Missouri and elsewhere, which I have before me, but I will not consume the time of the House by reciting them. I shall desist, after again directing the attention of honorable which this claim is a counterpart, a duplicate, which in fact is identical with it in all its circumstances. [He here sent the report of the committee in Brown's case to the Clerk, a part of which was then read.] I am satisfied, after this explanation, that it must be apparent to all, that whatever may be done hereafter, Congress has repeatedly heretofore granted relief in many cases precisely similar to the one made out in this application; and, indeed, that it has been the policy of the Government, for a number of years past, without exception, up to this time, to do so. I cannot, therefore, see why this claim of the widow and orphans of William Anderson should be made an exception to a rule so well established. But I am apprehensive that the prospective claims from Florida may have an undue weight upon the minds of some, in deciding upon this claim. Still I hope they will not; it will be time enough to consider the justice of those claims when they shall have been presented. If, however, the policy of the Government, heretofore pursued with regard to the Cherokee depredations committed prior to the treaty of 1798, should appear to be obviously unjust, I grant it should be abandoned. But I cannot see how any one can come to this conclusion, so as to make this small claim, which is perhaps the last of that class, an exception to a rule which has so long pre

that the risk and hazard which Brown encountered by descending the river through the Cherokee country is such a departure from a course of due propriety, and from the obvious sense of the existing treaty regulations, as to exclude these claimants from relief. His object-members to the case of the heirs of James Brown, of the settlement of the newly acquired territory-was lawful, and even commendable. He had obtained a permit from the nation to pass through their grounds, and the proof is, that his conduct towards the Indians was unexceptionable in all things. This is altogether unlike the case of a trader, whose object is to gain by traffic. He surely, then, had not, by his own conduct, put his person and property without the pale of the protection of his Government. It will be seen, by inspecting the sev eral treaties with the Cherokees, that no provisions were made in any of them to satisfy such claims as the present. But in the 9th article of the treaty of Tellico, or, as it is more familiarly called, the treaty of 1798, the usual remedy between the Indians and border settlers, which is that of reprisal, was expressly taken away, leaving the party injured without any summary redress, and, indeed, without any redress at all, unless this Government shall interpose its protection. It is provided in the article of the treaty of 1798 just quoted, that "all animosities, aggressions, thefts, and plunderings," prior to the date of the first conferences in that year," shall cease, and be no longer remembered or demanded on either side."-(Laws of the United States, vol. 1, p. 334.) By this treaty stipulation, even the privilege to demand their rights of the Cherokees was expressly taken away from our citizens. And, much more, the ordinary remedy, so much practised on the Western frontier, of reprisal. It does seem to me most clear that the Government, by this act, became liable, in good faith, to satisfy all bona fide claims of private citizens against the Cherokees that existed prior to the treaty of 1798, on account of "aggressions, thefts, and plunderings, of

that nation."

But it is argued, that if this claim should be allowed, a new policy will be established and introduced into our legislation, which will prove in the end onerous to the Government. This position is so far from being correct, that, if this claim be rejected, it will change the whole policy of this Government with regard to such claims, for the last ten or fifteen years. I do not pretend, said Mr. S., to have that profound information as to our Indian relations, or as to precedent generally, as many honorable gentlemen who have addressed the House on this subject. I have neither had the experience nor the means necessary to such attainments. But, in examining the past course of the Government on this subject, I find the aggregate sum of twenty-one thousand and eighty-six dollars appropriated, by act of Congress "approved 25th March, 1830," as full compensation to certain individuals named in said act, for horses stolen and property destroyed and taken by the Osage Indians, in the years 1816, 1817, 1823.-(Vol. 8, Laws of U. S. 294.) And again, in the year 1832, I find the sum of nine thousand seven hundred and fifty dollars appropriated by act of Congress of that year, to be paid to the legal representatives of John and James Pettigrew, for depredations committed on the private property of the Pettigrews, while navigating the Tennessee river in 1794, with interest upon that sum at the rate of six per centum per annum, from the date of the loss sustained, until the same should be paid-[Here Mr. SHIELDS asked the favor of the Clerk to read the report of the committee in the case of the Pettigrews, which he did]—and which Mr. S. said

vailed.

Mr. EVERETT, in reply to the arguments in favor of the bill, [of Mr. BELL, Mr. ASHLEY, and Mr. SHIELDS,] said that, since the debate of yesterday, he had examined this case, and was satisfied there was no foundation in principle for the claim. He was aware of the difficulty of engaging the attention of the House to an argument dry and uninteresting in itself, more especially in opposition to a claim of so trifling an amount. In addition to this, he was asking the House to reverse its own decision in a case identical with this, (the bill for the relief of Joseph Brown, passed in 1834) It was reported in 1832, and sanctioned by a second report in 1834. The report in the present case, made at the last session, refers to that case, and relies on it as a precedent. He did not reccollect whether the case of Brown underwent a discussion. It was reported and passed while he was engaged elsewhere on another com. mittee, and was now for the first time brought to his notice; and the importance of the principles assumed was his apology for addressing the House, and constituted his only claim to their attention.

If the aggression complained of was an act of war, the principle assumed would extend to all aggressions of the enemy in time of war. This principle has not been adopted by any Government. The decisions of Congress have been uniform, on claims for such aggressions during the revolutionary and late wars. If a distinction is taken in favor of Indian aggressions, the principle will extend to those of the West down to the treaty of Greenville (1795,) to those of the Black Hawk war, and to those committed and committing by the Creeks and Seminoles. At the time of this aggression (1788) there was but little ground for a distinction between Indian and foreign wars. The Indians were then regarded as foreign and independent nations; they were not surround. ed by our settlements nor under our control. He would refer the House to the report of the Committee on In

dian Affairs, in 1834, on the case of Alfred Stewart.* If the aggression was to be taken as committed in time of peace, the principle assumed would extend to aggressions in all time before recognised war. It would be an authority for the allowance of the claims for the French spoliations prior to 1800.

Mr. E. said he should meet the claim on its strongest ground; that, for the purpose of the argument, he would give the claim the benefit of the admission of a fact left doubtful in the report-that the aggression was committed in time of peace, and was not in itself an act of war. I will here remark (continued Mr. E.) that the claim is for an aggression committed not on the person but on the property of the claimant, and that the claim derives no aid from the hostile character of the aggression.

[H. OF R.

their hunting grounds, &c., such person shall forfeit the protection of the United States. No rights were secured to citizens to go into the Cherokee country for any purpose except that of trading with the Cherokees; protection was secured by the treaty to the property of traders only. The right of navigating the Tennessee river was not secured by this treaty, as was supposed by the gentleman from Tennessee, [Mr. BELL,] but by the treaty of 1791. The claimant was not a trader; he was not passing through the Cherokee country for that pur pose. At that day the Indian tribes were treated with as foreign nations; and it is somewhat singular that in this treaty there is a provision relating to retaliation or reprisals, in case of a violation of the treaty: "that retaliation shall not be practised on either side, except where there is a manifest violation of this treaty, and then it shall be preceded first by a demand of justice; and, if refused, then by a declaration of hostilities."

The case, then, is simply this: The claimant, in 1788, with the assent of the Cherokee nation, was passing down the Tennessee river, within the Cherokee country, Persons going into the Cherokee country had no with his property, not for the purpose of trade, but with other security than the treaty. In every other respect the sole view of passing through their country, to make they submitted themselves to such usage as might befall a settlement below it, when his property was forcibly them, without having any claim to call on the Governtaken from him by the Cherokees; and for the property ment to seek redress for any injury either to their perso taken he claims compensation. On what principle? sons or property. The Cherokees may have violated Upon the assumed principle that the Government were their faith pledged to Anderson, but not the treaty. It bound to protect its citizens against Indian depredations, is not intended to say that for any outrage the Governcommitted even in the Cherokee country; that it is ment might not, if it chose, demand satisfaction; but bound to seek redress for such depredations; that it hav- that an individual has no right to demand this of Governing made a treaty without securing such redress, or hav-ment, except for the violation of a right secured by ing by treaty released the claim, they are bound to indemnify the sufferers. To lay a foundation even for the assumption of these principles, it should appear that some right, secured to the claimant by treaty, had been violated, and that the Government had in fact released a subsisting claim for indemnity. I shall endeavor to show that the aggression was not in violation of any right se cured to the claimant by treaty; that no subsisting claim has been released; and that the Government are not bound, by any adopted principle of right or policy, to indemnify the claimant.

The treaty of Hopewell, of 1785, was the first treaty with the Cherokees, and established our first relation of peace with that tribe. By the 9th article of this treaty we secured the right to regulate the Indian trade; and the 10th article provides that, "until the pleasure of Congress be known respecting the 9th article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees, to trade with them, and shall be protected in their persons and property, and kindly treated." The 5th article provides that if any citizen of the United States, or other person, not being an Indian, shall attempt to settle on * Extract from the report in the case of Alfred Stew

art:

"That the petitioner, as heir, claims compensation for five negroes, taken in 1780, in a hostile manner, by an armed band of Cherokee Indians, within their territory, from his father, Thomas Stewart, a citizen of North Carolina, while removing with his family to Ten

nessee.

"The committee find the facts stated to be true. They are, however, of opinion that the petitioner is not entitled to relief. The injury complained of was, in it self, an act of war, committed while the United States were at war with the Cherokees, and to which the party voluntarily subjected himself by entering the territory of a hostile nation. Though the acts of war may have been occasional only, yet, until relations of peace were established by the Government, the hazard must rest on those who undertake it; so much so that no obligation is imposed on the Government even to demand redress, much less to indemnify the sufferers."

treaty. It may here be proper to refer to the case of Pettigrew and Scott.—(Report of March 22, 1832.) The report in that case is based on two facts, which are wanting in this case: that the aggression was committed in 1794, when descending the Tennessee river, in violation of a right secured by the treaty of 1791; and that the treaty of 1798 ceded lands in satisfaction of that aggression. They appear to have inferred the last fact rather from evidence of what occurred pending the treaty than from the treaty itself.

It will be remembered that the aggression was in 1788. The next material fact is that war immediately succeeded, and continued until 1791. Whatever claims the Government might have had against the Cherokees, even for violations of the treaty, were merged in the war. It is the remedy sought by the parties for the redress of all injuries. Admit, then, for the sake of the argument, that a right of the claimant, secured by treaty, had been violated, and that the Government were bound to seek redress, the act of war was the measure by which redress was sought-the highest act to which a nation can resort. And whether they in fact obtain redress must depend on the fate of war. But no Government guaranties the result. Its duty is, by all reasonable means consistent with the best interest of the community, to seek redress. It is not, however, bound to continue a war until redress is obtained. The higher interest of the country must control; and if this requires that a peace should be made without obtaining redress, the loss must be submitted to. The Government is bound only to use its best efforts; these failing, the citizen must submit to the fate of war. If, however, a satisfaction be obtained, in part or in whole, the Government is bound to distribute it among the claimants. The claimants for the French spoliations prior to 1800 base their claims on the allegation that their rights secured by treaty were violated; and that the Government, by treaty, have released those claims, in consideration of an equivalent. The issue is made on the equivalent; but if the principle now assumed be admitted, this issue becomes immaterial. They will be entitled to relief, though an equivalent was not obtained, because it was not obtained.

By the treaty of Holston, of 1791, an end was put to

the war, without any stipulation for satisfaction for prior aggressions on property. It provides for the mutual restoration of prisoners only. This applied to no species of property. The treaty of 1785 provided not only for the restoration of prisoners, but contained the further provision: "They shall also restore all the negroes and other property taken during the late war." The treaty of 1791 was simply a treaty of peace, not of indemnity. "There shall be perpetual peace and friendship between," &c. "All animosities for past grievances shall henceforth cease." The effect of the act of peace itself was to bury all past animosities. It foreclosed all claim on the part of the Government or its citizens for past injuries; all right ceased, and no subsequent treaty could affect them, unless they were expressly recognised or

assumed.

[JAN. 6, 1837.

a right to seek redress by retaliation or reprisal. No Government, however, has recognised this right. No Government can submit its peace to the hazards of such a principle.

The policy of a Government is prospective, not retrospective. A policy that may be proper in 1834 does not require its application to facts that took place in 1788. At that time no such policy was thought of. The Indian tribes were then recognised only as independent nations. They were not then surrounded by the whites; we had no hold on them for payment for depredations; they had little or no personal property. It was only when we had granted annuities, and had the power of retaining compensation, that we adopted the policy, not of paying for Indian depredations, but of making the Indians pay for them; thus binding the tribe as a surety for the acts It is assumed in the report that the treaty of 1798 re- of individuals. The first suggestion of this principle is leased these claims. The last clause in the 9th article found in the treaty of Philadelphia. This was the first is, that "all animosities, aggressions, thests, and plun. treaty that secured any considerable annuity to an Indian derings, prior to that day, shall cease, and be no longer tribe, and contains the first provision for a deduction remembéred or demanded on either side." The as- from it for compensation for Indian depredations, applisumption supposes that, notwithstanding the interven- cable, however, to the single article only of horses stotion of the war and the treaty of 1791, the plunderings len. The first intercourse act was passed in 1790, the of 1788 were existing claims. Independent, however, second in 1793; neither contained any provision on this of this, the treaty of 1798 has no relation to these claims, subject; but the act that followed next after the treaty but to claims subsequent to 1791. Difficulties arose as of 1794, viz: in 1796, adopted the preamble of that arto the execution of the treaty of 1791, which gave occa ticle, and extended it to all Indian depredations; and sion to the treaties of 1794 and 1798. Neither of these the same article has been since continued in force. were treaties of peace, but treaties to modify and carry The construction of these acts did not secure an eventinto effect the treaty of peace. The treaty of Philadel- ual indemnification; it was limited to cases of depreda phia of 1794 (which I shall have occasion to mention for tions committed within our own limits, by Indian tribes another purpose hereafter) increased the Cherokee an- with which we were at peace, and to which annuities nuity from $1,000 to $5,000, and provided "that for were payable. And it was not until 1834 that the Unievery horse which shall be stolen from the white inhab-ted States adopted the principle of paying for such depitants by any Cherokee Indians, and not returned within redations, whether annuities were payable or not. We three months, the sum of fifty dollars shall be deducted are now called upon to apply this late-adopted principle from the said annuities of five thousand dollars." The to a transaction of 1788. It gives me no pleasure to reparticular object of the 9th article of the treaty of Tel- sist this claim. The hour that I have detained the House lico of 1798 was to release all claims for horses stolen is of more value than the amount. We have already prior to the commencement of the negotiations in that paid some thousands of dollars on the principal claim, of year, and, generally, all other claims then existing, prior which this is a mere remnant. But, sir, when we look to that date; that claim which had been extinguished by to the magnitude of the claims which must follow the a prior war and treaty. The article is as follows: allowance of this, we cannot too soon, even at the hazard of inconsistency, retrace our steps by rejecting the bill.

"ART. 9. It is mutually agreed between the parties, that horses stolen, and not returned within ninety days, shall be paid for at the rate of sixty dollars each; if stolen by a white man, citizen of the United States, the Indian proprietor shall be paid in cash; and if stolen by an Indian, from a citizen, to be deducted as expressed in the fourth article of the treaty of Philadelphia. This article shall have retrospect to the commencement of the first conferences at this place in the present year, and no further; and all animosities, aggressions, thefts, and plunderings, prior to that day, shall cease, and be no longer remembered or demanded on either side."

I have thus endeavored to show that no right secured to the claimant by treaty had been violated; that the Government was not bound to demand satisfaction for the alleged aggression; that all rights between the Government and its citizens and the Cherokees were mer. ged in the war; that the treaty of peace of 1791 put an end to all claims for prior aggressions, and to all claims of our citizens on the Government to seek satisfaction; and that the treaty of 1798 had no possible relation or effect on the claim before us. I might here consider the claim as disposed of. But it is due to the report, and to the gentlemen who have advocated this claim, that I should notice the argument that is founded on what is said to be the policy of the Government, to make compensation for Indian depredations. It is alleged that this is the established policy of the Government, to prevent retaliation and to preserve peace. It has been almost asserted that individuals have

Mr. CRAIG moved to postpone the bill until Friday next. Lost.

Some further debate took place, between Messrs. CRAIG, HOAR, WARDWELL, BELL, WILLIAMS of North Carolina, ASHLEY, WHITTLESEY of Ohic, THOMPSON of South Carolina, SHIELDS, and HAR

PER.

Mr. WHITE, of Florida, said it was not his habit to address the House on any subject that was not directly connected with the interests of his immediate constituents, and he should not consider it proper upon any occasion to go out of his way for the purpose of saying any thing upon a private claim, with the merits of which he was not at all acquainted. The honorable member from Tennessee (said he) has shown himself fully competent to vindicate with ability the claims of his constituents. It appears, from what has been developed in the discussion of the bill now under consideration, that this is a claim for property destroyed by the Cherokee Indians, about the period of the commencement of hostilities between that tribe and the United States. It appears, also, that one of the parties in the same boat has been indemnified by an act of Congress for his property destroyed by the same Indians at the same time; and that another claim of considerable magnitude was allowed and paid to the family of Pettigrew, for a similar destruction of property, under circumstances in all respects like that which is the subject of the present discussion.