Special Messages.

To the Senate of the United States.

GENTLEMEN: I transmit herewith a treaty concluded by commissioners duly authorized on the part of the United States with the Choctaw tribe of Indians, which, with explanatory documents, is submitted to the Senate for their advice and consent as to the ratification of the same.

To the Senate of the United States:

I transmit to the Senate printed copies of the convention between the United States and His Majesty the King of Denmark, concluded at Copenhagen on the 28th March, 1830, and ratified by and with the advice and consent of the Senate.

To the Senate of the United States.

I submit for the consideration of the Senate a treaty of commerce and navigation, together with a separate and secret article, concluded at Constantinople on the 7th day of May last, and signed by Charles Rhind, James Biddle, and David Offley as commissioners on the part of the United States, and by Mahommed Hamed, reis eftendi, on the part of the Sublime Porte.

The French versions herewith transmitted, and accompanied by copies and English translations of the same, are transcripts of the original translations from the Turkish, signed by the commissioners of the United States and delivered to the Government of the Sublime Porte.

The paper in Turkish is the original signed by the Turkish plenipotentiary and delivered by him to the American commissioners. Of this a translation into the English language, and believed to be correct, is likewise transmitted.

To the Senate and House of Representatives.

GENTLEMEN: From information received at the Department of State it is ascertained that owing to unforeseen circumstances several of the marshals have been unable to complete the enumeration of the inhabitants of the United States within the time prescribed by the act of the 23d March, 1830, viz, by the 1st day of the present month.

As the completion of the Fifth Census as respects several of the States of the Union will have been defeated unless Congress, to whom the case is submitted, shall by an act of the present session allow further time for making the returns in question, the expediency is suggested of allowing such an act to pass at as early a day as possible.

To the Senate of the United States:

In compliance with the resolution of the Senate of the 14th instant, calling for copies of any letters or other communications which may havebeen received at the Department of War from the chiefs and headmen, or any of them, of the Choctaw tribe of Indians since the treaty entered into by the commissioners on the part of the United States with that tribe of Indians at Dancing Rabbit Creek, and also for information showing the number of Indians belonging to that tribe who have emigrated to the country west of the Mississippi, etc., I submit herewith a report from the Secretary of War, containing the information requested.

To the Senate of the United States.

In compliance with the resolution of the Senate of the 16th instant, calling for certain papers relative to the negotiation of the treaty between the United States and Turkey now before the Senate, I communicate the inclosed report of the Secretary of State, accompanied by the documents and containing the information requested.

To the Senate of the United States.

I submit to the consideration of the Senate two treaties--one of peace, the other of cession--concluded at Prairie du Chien on the 10th and 15th July, 1830, by commissioners duly authorized on the part of the United States and by deputations of the confederated tribes of Indians residing on the Upper Mississippi.

To the Senate of the United States:

A vacancy having arisen in the office of brigadier in consequence of the removal of General John Nicks from the Territory of Arkansas to Cantonment Gibson, I nominated at your last session William Montgomery to be general of the second brigade of militia of said Territory. By this communication I desire to correct the Journal of the Senate and my message of the 22d of April, 1830, so as to exclude the idea that General Nicks was removed from office.

To the Senate and House of Representatives of the United States:

I transmit herewith to Congress a copy of a correspondence which lately passed between Major-General Von Scholten, His Danish Majesty’s governor-general of his West India possessions and specialminister to the United States, and Mr. Van Buren, Secretary of State, concerning the regulation of the commercial intercourse between those possessions and the United States, which comprehends the propositions that General Von Scholten made to this Government in behalf of his Sovereign upon that subject and the answers of the Secretary of State to the same, the last showing the grounds upon which this Government declined acceding to the overtures of the Danish envoy.

This correspondence is now submitted to the two Houses of Congress in compliance with the wish and request of General Von Scholten him, self, and under the full persuasion upon my part that it will receive all the attention and consideration to which the very friendly relations that have so long subsisted between the United States and the King of Denmark especially entitle it in the councils of this Union.

To the Senate of the United States.

Since my message of the 20th of December last, transmitting to the Senate a report from the Secretary of War, with information requested by the resolution of the Senate of the 14th December, in relation to the treaty concluded at Dancing Rabbit Creek with the Choctaw Indians, I have received the two letters which are herewith inclosed, containing further information on the subject.

To the Senate and House of Representatives of the United States:

I communicate to Congress the papers relating to the recent arrangement with Great Britain with respect to the trade between her colonial possessions and the United States, to which reference was made in my message at the opening of the present session.

It will appear from those documents that owing to the omission in the act of the 29th of May last of a clause expressly restricting importations into the British colonies in American vessels to the productions of the United States, to the amendment engrafted upon that act in the House of Representatives, providing that when the trade with the West India colonies should be opened the commercial intercourse of the United States with all other parts of the British dominions or possessions should be left on a footing not less favorable to the United States than it now is, and to the act not specifying the terms upon which British vessels coming from the northern colonies should be admitted to entry into the ports of the United States, an apprehension was entertained by the Government of Great Britain that under the contemplated arrangement claims might be set up on our part inconsistent with the propositions submitted by ourminister and with the terms to which she was willing to agree, and that this circumstance led to explanations between Mr. McLane and the Earl of Aberdeen respecting the intentions of Congress and the true construction to be given to the act referred to.

To the interpretation given by them to that act I did not hesitate to agree. It was quite clear that in adopting the amendment referred to Congress could not have intended to preclude future alterations in the existing intercourse between the United States and other parts of the British dominions; and the supposition that the omission to restrict in terms the importations to the productions of the country to which the vessels respectively belong was intentional was precluded by the propositions previously made by this Government to that of Great Britain, and which were before Congress at the time of the passage of the act; by the principles which govern the maritime legislation of the two countries and by the provisions of the existing commercial treaty between them.

Actuated by this view of the subject, and convinced that it was in accordance with the real intentions of Congress, I felt it my duty to give effect to the arrangement by issuing the required proclamation, of which a copy is likewise herewith communicated.

To the House of Representatives:

In compliance with the resolution of the House of Representatives of the 17th of December last, calling for information on the subject of internal improvement, I submit herewith a report from the Secretaries of War and Treasury, containing the information required.

To the House of Representatives:

I beg leave to call the attention of Congress to the accompanying report from the Navy Department, upon the state of the accounts of the Navy in the office of the Fourth Auditor, and to suggest the necessity of correcting the evils complained of by early legislation.

The SPEAKER OF THE HOUSE OF REPRESENTATIVES:

I transmit to Congress a report of the Secretary of State, with the report to him from the Patent Office which accompanied it, in relation to the concerns of that office, and recommend the whole subject to early and favorable consideration.

To the Senate of the United States:

In compliance with the resolution of the Senate of the 23d ultimo, requesting to be informed of the quantity of live-oak timber in the United States, where it is, and what means are employed to preserve it, I present herewith a report of the Secretary of the Navy, containing the information required.

To the House of Representatives.

I submit to the consideration of Congress the accompanying report and documents from the Navy Department, in relation to the capture of the Spanish slave vessel called The Fenix, and recommend that suitable legislative provision be made for the maintenance of the unfortunate captives pending the legislation which has grown out of the case.

To the Senate of the United States.

I transmit herewith a report from the Secretary of War, containing the information requested by the resolution of the Senate of the 21st instant, in relation to "the state of the British establishments in the valley of the Columbia and the state of the fur trade as carried on by the citizens of the United States and the Hudsons Bay Company."

To the House of Representatives:

I beg leave to call the attention of Congress to the inclosed communication from the Secretary of the Navy, in relation to the pay and other allowances of the officers of the Marine Corps, and to recommend the adoption of the legislative provisions suggested in it.

To the Senate of the United States.

In pursuance of the advice and consent of the Senate as expressed in their resolution of the 10th February, 1830, the treaty of commerce and navigation between the United States and Austria concluded in this city on the 27th of August, 1829, was duly ratified by this Government on the 11th day of the same month of February; but the treaty itself containing a stipulation that the ratifications of the two parties to it should beexchanged within twelve months from the date of its signature, and that of the Austrian Government not having been received here till after the expiration of the time limited, I have not thought myself at liberty under these circumstances, without the additional advice and consent of the Senate, to authorize that ceremony on the part of this Government. Information having been received at the Department of State from the Austrian representative in the United States that he is prepared to proceed to the exchange of the ratifications of his Government for that of this, the question is therefore submitted to the Senate for their advice and consent upon the occasion.

To the Senate of the United States:

I respectfully submit to the Senate, in answer to their legislative resolution of the 20th ultimo, in relation to the sales of land at the Crawfordsville land office in November last, reports from the Secretary of the Treasury and the Commissioner of the General Land Office.

Concurring with the Secretary of the Treasury in the views he has taken of the treaties and act of Congress touching the subject, I can not discover that the President is invested with any power under the Constitution or laws to withhold a patent from a purchaser who has given a fair and valuable consideration for land, and thereby acquired a vested right to the same; nor do I perceive that the sole legislative resolution of the Senate can confer such a power, or suspend the right of the citizens to enter the lands that have been offered for sale in said district and remain unsold, so long as the law authorizing the same remains unrepealed.

I beg leave, therefore, to present the subject to the reconsideration of the Senate.

To the House of Representatives:

I transmit to the House of Representatives a report from the Treasury Department, in compliance with the resolution of the House of Representatives of the 3d ultimo, calling for the correspondence in relation to locating a cession of lands made or intended to be made by the Pottawattamie tribe of Indians for the benefit of the State of Indiana, etc.

To the House of Representatives of the United States:

I communicate to the House of Representatives, in compliance with their resolution of the 29th of January last, calling for information and papers respecting the seizure of American vessels by the naval forces ofPortugal forming the blockade of the island of Terceira, a report from the Secretary of State, which, with the documents accompanying it, contains the information in his Department upon that subject, and avail myself of the occasion further to inform the House of Representatives that orders had before the introduction of the resolution referred to been given to fit out a ship of war for the more effectual protection of our commerce in that quarter.

FEBRUARY 16, 1831

The SPEAKER OF THE HOUSE OF REPRESENTATIVES;

I present for the consideration of Congress a report from the Secretary of War, relative to a compromise of title of the island on which Fort Delaware has been constructed.

To the Congress of the United States:

I transmit to Congress a letter from Mr. Rhind, stating the circumstances under which he received the four Arabian horses that were brought by him to the United States from Turkey. His letter will enable Congress to decide what ought to be done with them.

To the Senate of the United States:

I have received your resolution of the 15th instant, requesting me "to inform the Senate whether the provisions of the act entitled ’An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers, passed the 30th of March, 1802, have been fully complied with on the part of the United States Government, and if they have not that he inform the Senate of the reasons that have induced the Government to decline the enforcement of said act," and I now reply to the same.

According to my views of the act referred to, I am not aware of any omission to carry into effect its provisions in relation to trade and intercourse with the Indian tribes so far as their execution depended on the agency confided to the Executive.

The numerous provisions of that act designed to secure to the Indians the peaceable possession of their lands may be reduced, substantially, to the following: That citizens of the United States are restrained under sufficient penalties from entering upon the lands for the purpose of hunting thereon, or of settling them, or of giving their horses and cattle thebenefit of a range upon them, or of traveling through them without a written permission; and that the President of the United States is authorized to employ the military force of the country to secure the observance of these provisions. The authority to the President, however, is not imperative. The language is:

It shall be lawful for the president to take such measures and to employ such military force as he may judge necessary to remove from lands belonging to or secured by treaty to any Indian tribe any citizen who shall make a settlement thereon.

By the nineteenth section of this act it is provided that nothing in it "shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of citizens of the United States and being within the ordinary jurisdiction of any of the individual States." This provision I have interpreted as being prospective in its operation and as applicable not only to Indian tribes which at the date of its passage were subject to the jurisdiction of any State, but to such also as should thereafter become so. To this construction of its meaning I have endeavored to conform, and have taken no step inconsistent with it. As soon, therefore, as the sovereign power of the State of Georgia was exercised by an extension of her laws throughout her limits, and I had received information of the same, orders were given to withdraw from the State the troops which had been detailed to prevent intrusion upon the Indian lands within it, and these orders were executed. The reasons which dictated them shall be frankly communicated.

The principle recognized in the section last quoted was not for the first time then avowed. It is conformable to the uniform practice of the Government before the adoption of the Constitution, and amounts to a distinct recognition by Congress at that early day of the doctrine that that instrument had not varied the powers of the Federal Government over Indian affairs from what they were under the Articles of Confederation. It is not believed that there is a single instance in the legislation of the country in which the Indians have been regarded as possessing political rights independent of the control and authority of the States within the limits of which they resided. As early as the year 1782 the Journals of Congress will show that no claim of such a character was countenanced by that body. In that year the application of a tribe of Indians residing in South Carolina to have certain tracts of land which had been reserved for their use in that State secured to them free from intrusion, and without the right of alienating them even with their own consent, was brought to the consideration of Congress by a report from the Secretary of War. The resolution which was adopted on that occasion is as follows:

Resolved, That it be recommended to the legislature of South Carolina to take such measures for the satisfaction and security of said tribes as the said legislature in their wisdom may think fit.

Here is no assertion of the right of Congress under the Articles of Confederation to interfere with the jurisdiction of the States over Indians within their limits, but rather a negation of it. They refused to interfere with the subject, and referred it under a general recommendation back to the State, to be disposed of as her wisdom might decide.

If in addition to this act and the language of the Articles of Confederation anything further can be wanting to show the early views of the Government on the subject, it will be found in the proclamation issued by Congress in 1783. It contains this language:

The United States in Congress assembled have thought proper to issue their proclamation, and they do hereby prohibit and forbid all persons front making settlements on lands inhabited or claimed by Indians without the limits or jurisdiction of any particular State.

And again:

Resolved, That the preceding measures of Congress relative to Indian affairs shall not be construed to affect the territorial claims of any of the States or their legislative rights within their respective limits.

It was not then pretended that the General Government had the power in their relations with the Indians to control or oppose the internal polity of the individual States of this Union, and if such was the case under the Articles of Confederation the only question on the subject since must arise out of some more enlarged power or authority given to the General Government by the present Constitution. Does any such exist ?

Amongst the enumerated grants of the Constitution that which relates to this subject is expressed in these words: "Congress shall have power to regulate commerce with the Indian tribes." In the interpretation of this power we ought certainly to be guided by what had been the practice of the Government and the meaning which had been generally attached to the resolves of the old Congress if the words used to convey it do not clearly import a different one, as far as it affects the question of jurisdiction in the individual States. The States ought not to be divested of any part of their antecedent jurisdiction by implication or doubtful construction. Tested by this rule it seems to me to be unquestionable that the jurisdiction of the States is left untouched by this clause of the Constitution, and that it was designed to give to the General Government complete control over the trade and intercourse of those Indians only who were not within the limits of any State.

From a view of the acts referred to and the uniform practice of the Government it is manifest that until recently it has never been maintained that the right of jurisdiction by a State over Indians within its territory was subordinate to the power of the Federal Government. That doctrine has not been enforced nor even asserted in any of the States of New England where tribes of Indians have resided, and where a few ofthem yet remain. These tribes have been left to the undisturbed control of the States in which they were found, in conformity with the view which has been taken of the opinions prevailing up to 1789 and the clear interpretation of the act of 1802. In the State of New York, where several tribes have resided, it has been the policy of the Government to avoid entering into quasi treaty engagements with them, barely appointing commissioners occasionally on the part of the United States to facilitate the objects of the State in its negotiations with them. The Southern States present an exception to this policy. As early as 1784 the settlements within the limits of North Carolina were advanced farther to the west than the authority of the State to enforce an obedience of its laws. Others were in a similar condition. The necessities, therefore, and not the acknowledged principles, of the Government must have suggested the policy of treating with the Indians in that quarter as the only practicable mode of conciliating their good will. The United States at that period had just emerged from a protracted war for the achievement of their independence. At the moment of its conclusion many of these tribes, as powerful as they were ferocious in their mode of warfare, remained in arms, desolating our frontier settlements. Under these circumstances the first treaties, in 1785 and 1790, with the Cherokees, were concluded by the Government of the United States, and were evidently sanctioned as measures of necessity adapted to the character of the Indians and indispensable to the peace and security of the western frontier. But they can not be understood as changing the political relations of the Indians to the States or to the Federal Government. To effect this would have required the operation of quite a different principle and the intervention of a tribunal higher than that of the treaty-making power.

To infer from the assent of the Government to this deviation from the practice which had before governed its intercourse with the Indians, and the accidental forbearance of the States to assert their right of jurisdiction over them, that they had surrendered this portion of their sovereignty, and that its assumption now is usurpation, is conceding too much to the necessity which dictated those treaties, and doing violence to the principles of the Government and the rights of the States without benefiting in the least degree the Indians. The Indians thus situated can not be regarded in any other light than as members of a foreign government or of that of the State within whose chartered limits they reside. If in the former, the ordinary legislation of Congress in relation to them is not warranted by the Constitution, which was established for the benefit of our own, not of a foreign people. If in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control. To maintain a contrary doctrine and to require the Executive to enforce it by the employment of a military force would be to place in his hands a power to make war upon the rights of the States and the liberties of the country--a power which should be placed in the hands of no individual.

If, indeed, the Indians are to be regarded as people possessing rights which they can exercise independently of the States, much error has arisen in the intercourse of the Government with them. Why is it that they have been called upon to assist in our wars without the privilege of exercising their own discretion? If an independent people, they should as such be consulted and advised with; but they have not been. In an order which was issued to me from the War Department in September, 1814, this language is employed:

All the friendly Indians should be organized and prepared to cooperate with your other forces. There appears to be some dissatisfaction among the Choctaws; their friendship and services should be secured without delay. The friendly Indians must be fed and paid, and made to fight when and where their services may be required.

To an independent and foreign people this would seem to be assuming, I should suppose, rather too lofty a tone--one which the Government would not have assumed if they had considered them in that light. Again, by the Constitution the power of declaring war belongs exclusively to Congress. We have been often engaged in war with the Indian tribes within our limits, but when have these hostilities been preceded or accompanied by an act of Congress declaring war against the tribe which was the object of them? And was the prosecution of such hostilities an usurpation in each case by the Executive which conducted them of the constitutional power of Congress? It must have been so, I apprehend, if these tribes are to be considered as foreign and independent nations.

The steps taken to prevent intrusion upon Indian lands had their origin with the commencement of our Government, and became the subject of special legislation in 1802, with the reservations which have been mentioned in favor of the jurisdiction of the States. With the exception of South Carolina, who has uniformly regulated the Indians within her limits without the aid of the General Government, they have been felt within all the States of the South without being understood to affect their rights or prevent the exercise of their jurisdiction, whenever they were in a situation to assume and enforce it. Georgia, though materially concerned, has on this principle forborne to spread her legislation farther than the settlements of her own white citizens, until she has recently perceived within her limits a people claiming to be capable of self-government, sitting in legislative council, organizing courts and administering justice. To disarm such an anomalous invasion of her sovereignty she has declared her determination to execute her own laws throughout her limits--a step which seems to have been anticipated by the proclamation of 1783, and which is perfectly consistent with the nineteenth section of the act of 1802. According to the language and reasoning of that section, the tribes to the South and the Southwest are not only" surrounded by settlements of the citizens of the United States,"but are now also "within the ordinary jurisdiction of the individual States." They became so from the moment the laws of the State were extended over them, and the same result follows the similar determination of Alabama and Mississippi. These States have each a right to claim in behalf of their position now on this question the same respect which is conceded to the other States of the Union.

Toward this race of people I entertain the kindest feelings, and am not sensible that the views which I have taken of their true interests are less favorable to them than those which oppose their emigration to the West. Years since I stated to them my belief that if the States chose to extend their laws over them it would not be in the power of the Federal Government to prevent it. My opinion remains the same, and I can see no alternative for them but that of their removal to the West or a quiet submission to the State laws. If they prefer to remove, the United States agree to defray their expenses, to supply them the means of transportation and a year’s support after they reach their new homes--a provision too liberal and kind to deserve the stamp of injustice. Either course promises them peace and happiness, whilst an obstinate perseverance in the effort to maintain their possessions independent of the State authority can not fail to render their condition still more helpless and miserable. Such an effort ought, therefore, to be discountenanced by all who sincerely sympathize in the fortunes of this peculiar people, and especially by the political bodies of the Union, as calculated to disturb the harmony of the two Governments and to endanger the safety of the many blessings which they enable us to enjoy.

As connected with the subject of this inquiry, I beg leave to refer to the accompanying letter from the Secretary of War, inclosing the orders which proceeded from that Department, and a letter from the governor of Georgia.

To the Senate of the United States:

The inclosed report * of the Secretary of War is herewith inclosed in answer to the resolution of the Senate of yesterday’s date.

To the Senate of the United States:

I present for the consideration of the Senate articles of agreement entered into and concluded by commissioners duly appointed on the part of the United States and the chiefs of the Menominee tribe of Indians at Green Bay. Various attempts were made to reconcile the conflicting interests of the New York Indians, but without success, as willappear, by the report made by the Secretary of War. No stipulation in their favor could be introduced into the agreement without the consent of the Menominees, and that consent could not be obtained to any greater extent than the articles show.

Congress only is competent now to adjust and arrange these differences and satisfy the demands of the New York Indians. The whole matter is respectfully submitted.

FEBRUARY 28, 1831.

To the Senate of the United States:

I submit to the consideration of the Senate of the United States articles of agreement and convention concluded this day between the United States, by a commissioner duly authorized, and the Seneca tribe of Indians resident in the State of Ohio.

FEBRUARY 28, 1831.

The SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES:

I lay before the House of Representatives a treaty recently concluded with the Choctaw tribe of Indians, that provision may be made for carrying the same into effect agreeably to the estimate heretofore presented by the Secretary of War to the Committee of Ways and Means. It is a printed copy as it passed the Senate, no amendment having been made except to strike out the preamble. I also communicate a letter from the Secretary of War on this subject.

To the Senate of the United States.

I transmit herewith, for the use of the Senate, printed copies of the treaties which have been lately ratified between the United States and the Choctaw Indians and between the United States and the confederated tribes of the Sacs and Foxes and other tribes.

To the Senate and House of Representatives of the United States:

I communicate to Congress a treaty of commerce and navigation between the United States and the Emperor of Austria, concluded in this city on the 28th March, 1830, the ratifications of which were exchanged on the 10th of February last.

To the Senate of the United States:

John H. Clack, a master commandant in the Navy of the United States, having rank as such from the 24th April, 1828, was on the sentence of a court-martial, which was approved by me, ordered to be dismissed from the service. On a reexamination of the record of the trial I am satisfied that the proceeding was illegal in substance, and therefore that the sentence was void.

To restore the party to the rights of which he was deprived by the enforcement of a sentence which was in law erroneous and void, I nominate the said John H. Clack to be a master commandant in the Navy of the United States, to take rank as such from the 24th April, 1828.