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Les cartes, planches, tableaux, etc., peuvent etre film6s cl des taux de reduction diff6rents. Lorsque le document est trop grand pour etre reproduit en un seul cliche, il est film6 A partir dp Tangle sup6rieur gauche, de gauche S droite, et de haut en bas, en prenant le nombre d'images a6cessaire. Les diagrammes suivants illustrent la methode. rrata to pelure. n a 1 2 3 1 4 32X M ESSAYS ON TBI PRESENT CRISIS IN THE CONDITION THE AMERICAN INDIANS ; riMT rVILIIHEO IN THE NATIONAL INTELLIGENCER, UNDER THE SIGNATURE OF ^ •"^M TexfcrrAaV^ ^'y'\>'''^ THOMAS KITE-44 WALNUT STREET. t ^ 1830. ' ' -if \ f4 e • ADVERTISEMENT. 5 C 9> In the letter, which contained the two firit papem of the following Mriei, »cl- dre»9Pd to the Editors of the National Intelligencer, an introductory statement wn» given, for the purpose of diiulosing the general design of the writer, and de- scribing the manner m whicli he intended to pursue the investigation. It ts deem- ed proper to copy that statement, as a preface to the formal discussion. Gentlemen : I send for your paper two m nbers of a series of Essays or\. the pending and ripening controctrty between the United States and the Indians. I hope you will insert them. Permit me as an inducement, to make the foUowing suggestions : 1. This is a subject which must be abundantly discussed m our country. 2. It will bo among the most important, and probably the most contested, busi- ness of the 21st Congress. Some able members of Congress, to my certain know- ledge, wish to have the matter discussed. • .u » «i,b 3. I expect to make it appear, by a particular examination of treaties, tnat ine United States ere bound to secure to the Cherokees the integrity and inviolabili- ty of their territory, till they voluntarily surrender it. 4. In the course of this investigation, 1 shall not agree with the present t-^ocu- tive of the United States, in the construction which ho gives to treaties ; ""»«"*" be sustained by the uniform tenor of our negotiations with the Indians, and legis- lation for them, from the origin ot our government to the present day. 5. My discussions will not assume a party character at all : ">" ^"•"^'•L speak of the President, or the Secretary at War, it shall always be by their offi- cial designation, and in a respectful "- nner. Though I think that the rfe""*"" has greatly mistaken his powers an.' , duty, in regard to the Indians, I .Have no wish concerning him, but that he ma^ oe a wise and judicious ruler of our grow- 1 have always approved of tlie decorum waichyou have obaerved, in speaking of public characters. • , ■ a :_«^ ....,: 6. I propose to furnish two numbers a week, that they may be copied into semi- weekly papers, if their editors see fit. • „r _ .-J .„ 7. The two numbers now sen* have been read to an eminent civilian, wld ap- proved by him ; and I shall endeavour to be careful in my principles, and accu- rate in my conclusions. At any rate, should I fall into error, I am perfecUy wil- ling that my error should be exposed. .. u. »»!,«,« 8. Should you insert these papers as I hope you may, I would rfqu^t that thew may be as little delay as possible : for there are many symptoms that the country will hti awake to the discussion, and is impatient for it. _-.i..„. .-a In the mean time, permit me to use the signature of that upright legislator ana distinguished phUanthropist, WU^LIAM PENN. DaOjf Jfat. MeU. Aug. 1 . 1 839.] • e 9 PRESENT CRISIS IN THE CONDITION *■» winjf Mriei, ad- ctory BlRtcment writer, »nd d«- ioii. It ii de«m- ssion. )t' EMayt on the the ludiani. I 10 the following country, contested, busi- ly certain know- reaties, that the • and inviolabili- ) present Execu- Batica ; but shall dians, and legis- day. and whenever I I be by their offi- at the President idians, I have no ler of our grow- ved, in speaking copied into semi- civilian, and ap- ciples, and accu- im perfectly wil- request that there that the country ;ht legislator and AM PENN. OF THS AMEBXOJEM imXAKS. No. I. CotUtntt of thU JVumier.— Information needed— Great interest* at stake— The character of our country involved— The world will judge m tho rase— Value of national character- Apprehensions of the divine displeasure— Statement ol the controversy. Every careful observer of public affairs must have seen, that a cri- flis has been rapidly approaching, for several years past, in reference to the condition, relations, and prospects, of the Indian tnbes, in the St; ithwestem parts of the United States. The attention of man' of our M03J intelligent citizens has been fixed upon the subject with great in- terest. Many others are beginning to inquire. Several public docu- ments, which have recently appeared in the newspapers, serve to awa- ken curiosiiy, and to provoke investigation. Still, howev! r, the mass of the community possess but very little in- formation on Ihfc Jiubject ; and, even among the best informed, scarcely a man can be found, who is thoroughly acquainted with the questions at issue. Vague and inconsistent opinions are abroad ; and however desirous the people may be of coming at the truth, the sources of knowledge are not generally accessible. Some persons think, that the Indians have a perfect right to the lands which they occupy, except so far aa their original right has been modified by treaties fairiy made, and fully understood at the time of signing. But how far such a nnodifica- tion may have taken place, or whether it has taken place at all, these persons admit themselves to be ignorant. Others pretend, ihat In- dians have no other rightjto their lands, than that of a tenant at mil; that is, the right of remaising where they are, till the owners of the land shall require them to remove. It is needless to say, that, in the estima- tion of such persons, the white neighbours of the Indians are the real owners of the land. Some people are puzzled by what is supposed to be a collision between the powers of the general government and the mmmmmmmrnr-"- elaimt of particular States. Othcra do not aee that there ia any hard- ship in br-.ntrinp; tiic Indians under the laws of the States, in the neigh- bourhood of whicii they iivo ; or, as the phrase is, within (Ae /tmit« of which, they live. Some consider it the greatest kindness that can Le done to the Indiana to remove them, even without their consent and against their will, to a country where, as is supposed, they will be in a cony« by the right of tho original poMossors ; a right which ia allowed in all countries to be of incontcitiblo validity. W*e auert, therefore, that no human power can lowfully compel us to leave our lands." If the Cherokee* are correct in their statement of facts,, who can resist their conclusion ? Wo might as well ask the Chineac, what right tKcy have to thoierritory which th'jy occupy. To such a question they would answer, *' God gave this land to our ancostorr. ^ur nation has alwajf* been in possession of it, so far as hintory and tradition go back. The nations of Kuropo are comparatively of recent origin ; tho commence- ment of ours is lost in remote antiquity." What can be said to such a statement as this ? Who can argue so plain a case ? It has been alleged, that tho savage of the wilderness can acquire no title to the forests, through which he pursues his game. Without ad- mitting this doctrine, it is sufficient to reply here, that it has no applica- tion to the case of the Cherokees. They are at present neither savages nor hunters. It does not appear that they ever were mere wanderers, without a stationary residence. At the earliest period of our becoming acquainted with their condition, they had fixed habitations, and were in undisputed possession of a widely extended country. They wrre then in the habit of cultivating some land near their houses, where they planted Indian corn, and other vegetables. From about the commencement of the present century, they have addicted themselves mure and more to agriculture, till they now derive their support from the soii, as truly and entirely as do the inhabitants of Pennsylvania or Virginia. For many years Uiey have had their herds, and their large cultivated fields. They now have, in addition, their schools, a regular civil government, and {(laces of regular Christian worship. They earn their bread by the abor of their own hands, applied to the tillage of their own farms ; and they clothe themselves with fabrics made at their own looms, from cotton grown in their own. fields. The Cherokees did not show tliemselves unwilling to sell their lands, so long as an adequate motive was presented to their minds. During every administration of our national government, applications w«rt made to them for the purpose of obtaining additional portions of their territory. These applications were nrged, not only, nor principally, by the consideration of the money or presents which they were to receive in exchange, but oflen, and strongly, by the consideration that they would become an agricultural people, like the whites — that it was for their interest to have their limits circumscribed, so that their young men could not have a great extent of country to hunt in ; and that, when they became attached to the soil, and engaged in its cultivation, the United States would not ask them to sell any more land. Yielding to these arguments, and to the importunities of the whites, tlio Cherokees sold, at different times, between the close of tho revolutionary war and the year 1820, more than three quarters of their original inheritance. That }r boen in bon* ir white neii^h* liu luni] whici] a riffht which y. W*e auert, I to leave our who can reaiit vhat right they tion they would ion has alwayt ^c back. The ho commence- } can argue to can acquire no . Without ad- hai no applies- neither savage* ere wanderers, f our becoming na, and were in rhey wrre then ere they planted nmencement of )re and more to oil, as truly and nia. For many d fields. They overnment, and r bread by the own farms ; and vn looms, from sell their lands, minds. During >plication8 w«r« tortioos of their r principally, by were to receive ration that they -that it was for their young men I that, when they ition, the United iciding to ttiese Cherokees sold, ary war and the leritance. That 1 the reader may have some definite idea of tlio territory in question, b« i should pursue tho following .lelincation ».y tht aid ol a k<.o.I .map. It would srnn timt tho Cherokees p.mesmi land extend.nK to th« follow.n^r i'lNii.-. If n-'l beyond t!,. n., u/. : 1 r..m the mo.Uli of Duck river, in Ten.ie:..ieo, on the we«t. t.. th.) uat.rs ..I I riiioh Hroiul, in i>orth Carolina, on tho cast ; an.l Iroiu the head waters ol tho lloUton, in Virginia, on tho north, to some distance down the ^ )c(.nee, in (icorgia. on the south; e<.ipprisin)?. besid.! what is now the Cherokee country, more than half of the State of •rennes.co, the H..ulhern part ol Kinitucky, the southwest corner of Vi,«inia, a considerable p..rlion of both of Iho Carolinas, a small portit.n of Georgia. uikI the northern part ol Alabama. This tract probably contained more thun .'Jo.OOO.UOO acres, of whichalarKO proportion is extremely fertile, and some ■ ' it not infe- rior to any land in North America, or perhaps in the wor d. riie coun- try is also generally healthy, and the climate delitjhtful. Ol all ..:is vast and beautiful tract, watered by numeroui. rivers, w' icli find their way to tho ocean, some of llieni circuitously by tho Mississipi.i, and others more directly to tho culpb of Mexico and tho Atlantic, (lie Cherokc-s now retain less than «,000,OOU acres, of a quality "V >*='"'':, 'I'?, "'""8® nualitv of that which thev have sold. Georgia claims f^OOO.OOU acres of this remnant, as falling within tho map of that State. Alabama claims nearly l.OOO.UOO of tliu residue. Tho portions which, in the g-jneral division, will fall to Tennes.sce and .North Carolina, seem hardly worth enquiring about ; for, if the other portions arc «ivcn up, or taken by force, there will be no motive for retaininsi; these. To every application made for their lands within the last ten years, the Cherokees have said, " We aro not disposed to sell any inore. We have betaken ourselves to an ogricultural life. We aro making progress in civilization. Wo are attached to our schools and our Y''"?!'"" teachers ; to our farms ; to our native rivers and mountains. We have not too much land for our own comfort, and for aflordmg us a fair chance in the experiment wc are making." This language has been repeated in many forms, and with every indication of sincerity and earnestness. The assertion of the Cherokees, that their present country is not too larire for a fair experiment in the work of civilization, is undoubtedly correct The wisest men, who have thought and written on this subject, asree in the opinion, that no tribe of Indians can rise to real civilization, and to tho full enjoyment of Christian society, unless they can have a community of their own ; andean be so much separated from the whites, as to form and cherish something of a national character. If the limits of the Cherokee country wore much smaller than they are, this would be impracticable. • • l *i. Thus stands the case ; and it is now my intention to inquire how the ffovernment of the United States has regarded the Indian title, and how it has been regarded by tho several States iii the vicinity of the Cherokees. , Before this inquiry is commenced, however, it is proper to say, tnat the title of one party cannot be safely docided by the mere claims of another party. If those claims are founded in justice, they ought to pre- vail ; if not, they should be set aside. Now, whatever doctrines the government of the United States may have held and promulgated on this 2 / 10 subject, they cannot be binding upon the Indians, unless acknowledged by them to be binding, or unless founded in the immutable principles of justice. , Let us suppose that the kings of Great Britam had issued an annual proclamation, from the time of the discovery of America to the peace of 1783, claiming all the lands in Norll. America between 30 and 50 north latitude, and declaring that all the nations, tribes, and communi- ties, then residing on said lands, were subject to the laws of Great Britain, and thai the title to all these lands was vested in, and of right belonged to, the crown of that realm ; and let us further suppose, that the Government of the United States had issued an annual proclamation, from the date of the declaration of independence to the present day, applying the same doctrine to our advantage, and declaring, that all the Indian nations within the limits prescribed by the peace of 1703, were subject to the laws of the United States, and that the lands of which they were in possession, belonged of right to the United States, so long es the Indians did not acknowledge the binding nature of these claims, the mere claims would have amounted to nothing. It was the practice of the king of England, during several centuries, to declare himself, (as often as he issued a proclamation on any subject whatever,) king of Great Britain, France and Ireland. Was he therefore king of France ? What if he were now to declare himself king of Great Britain and China ? It would be a cheap way, indeed, of acquiring a title, if merely setting op a claim would answer the purpose. By what right do the people of the> United States hold the lands wh>cb thcj occupy ? The people of Ohio, for instance, or of Connecticut ? By the right of occupancy only, commenced by purchase from the abonginal possessors. It would be folly to plead the charters of kings, or the mere drawing of lines of latitude and longitude. The powers of Europe have indeed acknowledged our right to our coui.try. But what if they had not ? Our right is not at all affected by their claims, or acknowledgements. The same doctrine is applicable to the condition of the Cherokees. They have & perfect right to their coun- try, — the right of peaceable, continued, immemorial occupancy ;— and although their country may be claimed by others, ii mtfy lawfully be held by the possessors against ell the ^vorld.* • The Cherokees need not fear, however, that their rights are in dan- ger, as a consequence of any principles sanctioned by the national legislature of the United States. The co-ordinate branches of our government have not yet declared, that Indians are tenants at will. On the other hand, tho whole history of our negotiations with them, from the peace of 1783 to the last treaty to which they are a party, and of I all our legislation concerning them, shows, that they are regarded as a ■1 separate community from ours, having a national existence, and posaes- \ sing a territory, which they are to bold in full possession, till they volnn- \^ tsrily surrender it. • Some shallow writers on thi« subject have said, that " the Cherokees hav« tnly the title of occupancy j just as though tho title of occupancy were not the best title in the world, and the only origbal foundation of every other Utle. Every reader of Blackstone knows this to be the fact. As to tho past, the Cherokees have tm- mmorial oeeupaneif; as to thf future, they have a perfect right to otcupjf their country ind^nitelg. What can they desire more ? i knowledged principles of 1(1 an annual to the peace I 30 and 50 id commiini- ,W8 of Great and of ri^ht lupposc, that roclamationi present day, ;, that all the 1703, were nds of which intes, so long Ihese claims, the practice 3 himself, (as irer,) king of f of France T n and China ? oertly setting e lands which Connecticut ? ase from the charters of gitude. The t our coui.^ry. cted by th«ir ilicable to the to their coun* ipancy ; — and iwfully be held Is are in dan- f the national nches of our 3 at will. On h them, from party, and of regarded as a ;e, and posses- till they volwn- Cherokees hav« were not the best tie. Every reader irokees have im- tt to occupy thtir II 1 now proceed to the examination of treaties, between the United Stp.tes and the Cherokee nation. And here I would apprize the reader, that the case can never be fairly and fully understood, without a reference lo every material article, in every treuly which has been made between these parties. Unless such a reference is had, no reader can be sure that he has a view of the whole ground ; and a caviller might object, that there had been omissions, in order to conceal a weak purt of the case. This is a subject, too, which the people of the United States must have^-^iienco to investigate. When measures are in progress, which have a bearing on the permanent rights and interests of all the Indians, it must not bo thought tedious to read an abstract of the solemn engagements, by which wo have become bound to one of these aborigi- nal nations. . . . , • In the revolutionary contest, the Cherokees took part with the kmg of Great Britain, under whose protection they then considersd them- selves, just as they now consider themselves under the protection of the United States. After the peace of 1783, it does not appear that any definite arrangement was made with this tribe till the year 1786. In the course of that year, the old Congress ttjipointed four commissioners plenipotentiary, men of distinction at the south, to meet the head men and warriorc of the Cherokees, and negociate a treaty of peace. The parties met at Hopewell, now in Pendleton District, S. C. ; and, on the 28th of November, executed an instrument, which is usually cited as the treaty of Hopewell. The abstract of this instrument, with some remarks upon it, will be given in my next number. No. in. Firrt compact between the United State* and the Cherokeei; vii. the treaty of Hopewell— Abstract of this treaty— Reasont for thinking it itill in force— Th« Old Congre»g hcd the power to make treaties- Argument of the Secretary of War— Meaning of the phraaea to give peaee, and to aiioU The title of the treaty to which I referred in my last number, is in these words : " Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew Pickens, Joseph Martin, and Lachlan Mcintosh, commissioners plenipo- tentiary of the United States of America, of the one part, and the head men and warriors of all the Cherokees, of the other :" The preface to the articles is thus expressed : "The commissioners plenipotentiary of the United States in Congress assem- bled, give peace to all the Cherokeet, and receive them into the favour and pro- Uction of the United States of America, on the following conditions : Before I proceed to make an abstract of the articles, it is proper to ■ay, that in regard to this and all subsequent treaties, I shall be as brief as appears to be consistent with putting the reader in full possession of the case. The more material parU of treaties I shall cite literally ; and these will be distinguished by double mverted commas. Other parU 12 will be abrJdi^ed ; but where the principal words of any abridgmenf, are taken from the treaties, such passages will be marked by single inverted commas. The loss material parts will be expressed as briefly as possi- ble in my own languaRO ; but in all these cases I pledge myself to the £ti Iciest fidelity. At least the subject of every article shall be mentioned, that the reader may judge of the general aspect of the whole, as well as of the meaning of the moat important parU. The treaty of Hope- well, then, reads as follows : Abt. 1. The head men and warriori of all the Cherokees ahall reitore all tho priMners, citiien* of the United States, or subjecU of their allici, to their entire liberty : they Bliall aUo restore all tho negroes, and all other property taken dur- ing the late war, from the citizens, to bi'.cTi person, and at such time and place, as the commissioners shall appoint, " Art. 2. Tho commissioners of the United States in Congress assembled, shall rtstore all the prisoners taken from the Indians during the late war, to the head men and warriors of the Chorokoos, as early as is practicable. " Aet. 3. The said Indians, for themselves, and their respective tribes and towns, do acknowledge all tho Chorokees to be under the protection of the Uni- ted States of America, and of no other sovereign whatsoever. " Aax. 4. The boundary allotted to the Cherokees for their hunting grounds, between tho said Indians and the citiiens of the United States, within the Jimita of the United States of America, is, and shall be the following:" This boundary defines tho northern and eastern limits of the Cherokee country. »» Art. 5. If any citizen o*" the United Statos, or other person, not bemg an In- dian, shall attempt to settle on any of the lands westward and southward of the Mid boundary, which are hereby allotted to tha Indians for their hunting grounds, or having already settled and wi'l not remove from tho same within six months af- ter the ratification of this treaty, such person shall forfeit the protection of the United States, and tho Indians may punish him, or not, as they please. Then follows a proviso, as to settlers "between tho fork of French Broad and Holston, whose 3aae is to be referred to Congress. "Art. 6. If any Indian, or Indians, or persons residing among them, or who shall take refuge in their nation, shall commit a robbery, or murder, or other ca- pital crime, on any citizen of the United States, or person under their protection, the naUon, or the tribe, to which such offender or offenders may belong, shall be bound to deliver him or them \ip, to be punished accordmg to the ordinances of the United States ;" » provided that the punishment shall not be greater, than if tho crime had been committed by a citizen on a citizen.' ... « Art. 7. If any citizen cf tho United States, or person under their protection, shall commit a robbery or murder, or other capital crime, on any Indian," he shall be punished in the same manner as if " the crime had been committed on a citi- sen ;" and the punishment shall be in the presence of some of the Cherokees, wba ■hall have due notice of the time and place. Art. 8. No punishment of the innocent for the guilty, 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. «• Art. 9. For the benefit and comfort of tho Indians, and for the prevention of injuries or oppressions on tho part of the citizens or Indians, the United States m Congress assembled, shall have the sole and exclusive right of regulating u.9 trade with the Indians, and managing all their affairs, in such manner as they think proper. , „^, ... „ "Art. 10. Until the pleasure of Congress be known respecting tho 9th article, a temporary provision is mado for tho security of traders. _ • "Art. 11. Tho said Indians shall give notice" of any designs "termed many neighbouring tribe, or by any person whomsoever, against tho peace, trade, or in- terests of the United States. r ^7^j °//„, freat; to the contrary notwithstanding. Indeed, H.'^y must have ex- crcised great forbearance already, as they have permitted the oad to be open trcenty seren years, solely out of regard to this treaty ; i^f^;^^°^ gia has waited twenty-seven years before taking P^^^'^^^" °^ 'i^Jj^-S ?okee territory, out of complaisance to the engagements of te United States, which it would seem, are to be discarded as of no validity. In the second nin.ce, none of the treaties made subsequently by he Chickasaws aro binding upon them ; -d therefore they may reelaimiall the lands which they have ceded to the Uni ed Statc^ Of course, he inhabitants of West Tennessee, who now live o"/'-''^l''Vf7''.„™ wore ceded to the whites by the Chickasaws, must immediately remove. rfthecSaaaws require it. The reason is plam. No superior can be bound to an inferior ; but that the Chickasaws are the superiors, i. evi- dent, as the Secretary of War says in the other case, because the em- nhaticlanguase" of tne treaty "cannot be mistaken. ■^ But it may be said, that there are other indications in the treaty of Hopewell, that the United States assumed a superiority, beside the Phraseology, in the instances above cited. The question is not, be it fcmerber?d. whether the United States, at to time of he treaty of Hopewell, were a more powerful nation than the Cherokees ; but whe- ther. bJng a more powerful naUon. they are o., that account exempted from the obligation of treaties. j «u„ „«,♦-- The Cherokees did. undoubtedly, place themselvc under the protec tion of the United States, in the third article. They had formerly oeen under the protection of the king of Great Britain ; ""this power hd failed them It was natural that they should tccep proffers of protec- tlon from some other quarter. This is not a new tJiing in the world. From the time of Abraham to the present day, there have been aliances, offensive and defensive, confederacies, and smaller states '«'? "8 f°[ P™" tection upon the plighted faith of larger ones. But what « 'mp''«f »n th^ iery idea of pJot.-'tion ? Is it not that the party protected is to have i lervices, the ferries over d deemed to the Chicka- iident of the in his name, jthfully, and Hitter before licy will say, , who, in hia 'resident, on )rnpensation, iws, as often if the king of : is to be the in the first tions of the ust have ex- (le road to be just as Geor- of the Che^ )f tlie United aiidity. uently by the y reclaim|all f course, the lands, which itely ren'ove, perior can be leriors, lo evi- use "the em- the treaty of , beside the is not, be it the treaty of ■es ; but whe- unt exempted er the protec- rormeriy oeen lis power had ers of protec- in the world, leen alliances, slying for pro- i is implied in cted is to have IT all its rights secure, not only against others, but against the protector also ? If some rights arc yielded as the price of protection, is it not that other rights may be preserved with the greater care and certainty ? It is said that the United States were to have the sole and exclusive right of regulating trade with tlic Cherokees. True : but this was ex- pressly declared to bo for the benefit of the Indians, and to save them from injustice and oppression. These laudable objects were gained to a considerable; extent ; and, if the laws of the United Slates on this sub- ject had been always carried into full execution, the condition of the In- dians would have been rapidly improved, as a consequence of this very stipulation. It is said that the lands of the Indians are called their '< huiUing ground* ;" and that they could not, therefore, have a permanent inte- rest in lands thus described. But h(»w docs this appear ? Tlie treaty has no limitation of time, nor is there the slightest intimation that it was to become weaker by the lapse of years. As the Indians gained their principal support by hunting, it was natural to designate their country by the phrase " hunting grounds ;" and this is as good a de<;ignation, in regard to the validity of a title, as any other phrase that could be cho- sen. It contains the idea of property, and baa superadded the i''">»- king othar necessary, just, and friendly arrangements :— the President of the Uni- ted SUtes, by William Blount, Governor of the territory of the United States south of the River Ohio, and euperintendant of Indian alTairs for the Southern District, who is vested with full powers for these purposes, by and with tho advice and consent of the Senate of the United States; and the Cherokee nation, by the undersigned chiefs and warriors representing the said nation, have agreed to the following articles, namely :" • I have thought it best to cite the whole title and preamble, that the reader may see in what manner the parties to this instrument saw fit to describe themselves ; or, more properly, in what manner the plenipoten- tiary of the United SUtes, with the President and Senate, saw fit to de- scribe these parties : for it will not be pretended that the Cherokees reduced the treaty to writing. This is the second treaty, which was made with Indians, by the government of the United States, after the adoption of the Federal Constitution. The first was made with the Creek nation; and was executed at New York, August 7th, 1790, by Henry Knox, then Secretary of War, as the commissioner of the Unitetl Stales, and twenty-four Creek chiefs, in behalf of their nation. In com- paring these two treaties, it is found, that the title and preamble of the Cherokee treaty are an exact transcript from the other, except that " Cherokee" is inserted instead of " Creek," and the word " kmgs, before *• chiefs and warriors," is omitted. ta a lort of n perfect pri- iiited States. Itcd to have tenant!) were tccording to pt to settle" ibsolute pro- bringing tbia rard into tho aro36 ; blood quarter were sration. The Id Congress, nitid States, us policy to- the proper the treaty of snt Washing- 1 t&e Pretideni id States, and le part and be- friendship be- lena and metn- itnita, and ma- mt of the Uni- United States ■ the Southern ritb tho advice nation, by the I agreed to the ble, that the nt saw fit to i plenipoten- aw fit to de- e Cherokees f, which was es, after the de with the Ji, 1790, by f the United }n. In com- amble of the except that ird " kings," It AH the principal articles of the two treaties are of the same tenor, and expressed by the same phraseology. As (iovurnor Blount made the Cherokoa treaty alter iho mo ities with the United States during the last lorty years, till the whole number of treaties thus made far exceeds a hundred, every one of which was ratified by the Senate before it became obligatory. Every instance if this kind, implies that the Indian communities had governments of their own ; that the Indians, thus living in communities, were not subject to the laws of the United States ; and that they had rights and interests distinct from the rights end interests of the people of the United States, and, in the fullest sense, public and national. All this is in accordance with facts ; and the whole is implied in the single word treaty. Again ; the parties on the banks of the Holston signed a treaty " of peace." It is matter of history, that there had been fighting and blood- shed. These acts of violence were not denominated a riot, a tedition, a reMlion ; they constituted a war. The settlement of the difficulty was not called a pardon, an amnesty, a suppression of a riot, a conviction, a punishmeiU ; it was called a peace. Nor is it said here, as in the treaty of Hopewell, that the United States " give peace." There is, in the title and preamble, every indication of perfect equality between the par- lies. In point of fact, the whites were, at that moment, much more desirous of peace than tho Cherokecs were. This is also a treaty of "friendship;" which implies, that the Chero- k6e8 were not only a substantive power, capable of making peace and declaring war, but that, after the treaty was executed, they were ex- pected to remain in the same state. It was not a surrendry of their national axistence, but the establiabment of amicable i-elations to remain ; ll'iiiaf J~i;t /"I- 1 power ; and tiint articliis , nre a mere Vhat it the . Tho title treaty ? It >arty acting ich does not ' tho United eaty-making uhlic object, )n the nppli- y yard, or a eorgia cedes r two large sation there- (lingly, such s of tho Na- ils kind are senate of the of the con- in it make a lower. -But Jnitcd States es thus made y the Senate implies that : the Indians, f the United m the rights fullest sense, ;ts ; and the a treaty " of ig and blood- a aedition, a ilifficultv was conviction, a in the treaty sre is, in the ireen the par- , much more tt the Chero- ng peace and lioy were ex- ndry of their na to remaiq ; •Ji and, so far as this treaty could opcrntn, the amicnhlo relational thua acknowledpfcd to exiitt. wnro In continuo thmiinh nil t'litiirn time. Who arc tlir partii-.i to llim " tnalf/ of imier and frknthkip.'"' The I'rciiidvnt acts in Ix'linlf of orio of llit- p.'irti<>.<<, and " the tiiidorviKncd chiefs nnd warriors of tho Clirrokcc Nation of Indinnn, on the i>art and behalf of taid A(»urii«lvci ic iinir« <:au- ind c'' mjilli ■ an uprinhl , if VNttHhin • uitflrett* nf '. inu captivity, whom the citizens of the United States have captured from them." A period of about nine months was allow- ed for a compliance with t'.iis article. Hero the most entire reciprocity exists, precisely as it is found, usually, in treaties of peace between European powers. " Art. 4. The boundary between the citizen, of the United States and the Cher- okee nation is and ^hall be a, follows :" [Hero^the ^"""•^^f " fc^ri^co^^^^^ ia, in part, the same with that in the treaiy of Hopewell ; b>'t the Cherokee coun- try on the northeast is considerably curtailed. Here had been the «»'<'**" °"; ing the interval betweon the two treaties. A tract, which " n°'*,^»'« "'"^I^Pjg of Tennessee, and which probably contame a population of more than 200,000 aouls. was still retained by the Cherokees.] . . The wUcle provides that the boundary ihaU bo a«ierta,nod and marked, and """"ArXintder'to extinguish forever all clain,. of the Cherokee nation, or any Bartlhe eof, to any of the land lying to the ri(rht of the l.no above described, be- SSling as aforesaid, at the Currahee mountain, it \« »|««j'y f K"'''?,!^/^' '" "tS^. tion to the consideration hf-otoforo made for the said land- the United States will 'rsfcnaS? valuable goods to be immediately delivered to Ihe^^^^ and warriors, for the use of their nation ; and the siu. United States will also cause the suri of A1,000 to be paid annually to the said Cherokee nation. And the undersigned^hlef! and warrior do hereby, for themselves and the Cherokee na- Son S heirs and descendants, for tho consideration above mentioned, release, irtclaim, relinquish, and cede all the land to tho right ot U.e Une described, and beginning as aforesaid." One object of the treaty was declared in the preamble to be to » as. certain tU limita of the Cherokees." In the article just quoted, the SS a e defined on the north and east ; that is, on those sides where he white settlers were approaching the borders of th«C^.7kee coun- try On the south and west the Cherokees were imited by the country of their Creek and Chickasaw neighbors ; so that there would have been no propriety in even mentioning the subject here. At"hi close of tho article, the Cherokee chiefs. » for themselves and the whole Cherokee nation, their heirs and descendants, release, quit claim, relinquish, and cede" a certain P"'t'on of their country ; that very country which had been called « hunting grounds" in the treaty of Hopewell and of which, as it is now pretended, the Cherokees were ■tenantTat will. Was it over before heard, that a teno.nt at will reUast^d and ceded land to the rightful owner ? , . j i. „.j :„ The phrascclogy hcre%.sod not only implies that the word ffed^m tho pre ious trealy, meant no more than that the boundary oi the Che- rok^Tountry J. fixed or d4ned, by the article in which it was used ; ttmrnm e ntture ofa inty — Impor- tta and Swit- The third ip " all per- parl of the 9 Cherokees inited States 8 waa allow- 3 reciprocity ace between and the Ch«r- icribed, which Iherokee coun- at of war dur- le central part than 200,000 d marked, and nation, or any I described, be- 1 that, in addi- ited States will lorsigncd chiefs States will also lation. And the B Cherokre na- itioned, release, I described, and be to *' aa- t quoted, the B sides where lierokee coun- )y the country e would have hemselvea and 9, release, quit country ; that n the treaty of lerokees were it will releaaed 3rd allotted, in ry of the Che- 1 it was used ; >«3gBj, 23 but, it implies aUo, in the strongest manner, Uiat the sovereign power of the Cherokees over their territorj was unqiiestionable. The word " cede" is the most common and operative wore', in all transfers of terri- tory from one nation to another. Unless explained and limited, it con- veys the right of sovereignty. Tlius, in cessions of small portions of land to the general government, for navy yards, &,c. the several States are in the practice of reserving certain rights ; such as the right of en- tering to apprehend criminals, &-c. implying that the wokI cede vvould, ex vi tenninU convey to the general government all the rights of sover- eignty. But no party can "onvey what it does not possess ; and it would have been absurd for the United States to ask and accept a cession, without admitting that the Cherokees had power to make one. This article expressly declares that thq agreement was entered into, the ces- sions made, and the compensation given " to extinguish forever all oloims of the Cherokee nation" to the lands thus ceded. The Chero- kees are acknowledged, then, to have had claims, not cancelled by war, — not swept away by the superior force of thn United States, — never before surrendered : claims, which the solemn sanction of treaties was deemed necessary to extinguish. " Akt. 5. It is stipnlated and agreed that the citizens and inhabitants of the United States shall have a free and unmolested use of a road from Washington district to Mero district, and the navigation of the Tennessee rivur." This is another very curious provision, if we are to believe that the Cherokees are merely tenants at will, and the people of the United States the rightful owners. But upon the only tenable ground, viz. that the Cherokees bad a perfect title to the soil, with undoubted rights of sover- eignty over it, the article is intelligible and reasonable. The people of the United States wanted i free passage through a particular part of the Cherokee territory ; and, as the parties now sustained amicable relations, such a passage was granted by a treaty stipulation. Art. 6. It b agreed on the part oftho Cherokees, that the United States shall have the sole anu exclusive right of regulating their trade." By the constitution of the United Slates it had been provided, that Congress should have power to regulate commerce " with the Indian tribes." This policy had been pursued in the treaty of Hopewell, and was doubtless chosen wi ely, and with a view to benefit the Indians. It was not binding upon thom, however, till they voluntarily consented to it. " Art. 7. The United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded." This is iho most important article in the treaty. The Cherokees had yielded some of their natuial rights. Tiicy had agreed not to treat with any foreign power. They had committed the regulation of their trade to the United States. They had admitted the United States to partici- pate in the navigation of the Tennessee ; and had granted a free pas- sage through a certaiv. part of their country to the citizens of the United States. They had ceded a portion of their territory. On the other hand, the United States engaged to protect the Chero- kees, to promote their civilization, as will hereafter be seen, and espe- cially, to guaraniy the integrity and inviolability of their territory. In a world full of outrage, fraud, and violence* it is a great advantage for a weak state to obtain the solemn guaranty of a powerful neighbour, that its rights and sovereignty shall be safe. All this is implied by a guaran- 4 2« It. The United States solemnly engaged to preserve and defend the Cherokees ajjainst all foreign powers, (a colony of Spain being then in the neighboiirliood,) against the slates of Georgia and North Carolina, against the Umted States, in their federative capacity, and against all white* who should threaten to commit aggressions upon the Chero- The word guaranty can mean no less, unless limited by the subject or context, if Bonaparte guarantees the integrity of Switzerland, he engages to defend and preserve Switzerland from aggression and inva- sion, whether tho danger arises from Austria, Prussia, Holland, or even France itself. It ia the chosen and approniiate word to express the utmost security, which can be pledged to one party by the power and good faith of another. . «. . . i- j Upon the guaranty of the United States the Cherokees have relied, with unshaken constancy, since the year 1791. Within a few months their confidence has been shaken ; and they are now in a state of groat solicitude and anxiety. It remains to be seen whether a treaty will bind the United States to a weak and dependent ally, or whether force is to be the only arbiter in the case. No. VII. TrtatT ofllokton continued— Further remarks en the guaranty— StaUment of parallel casei— WlioUier Uie world can be made to receive the modera inter- pretation—The Cherokeee would never have made a peace without thii goa- rantT— Wo urged tho Cherokeee to a peace, and called them brothers— Ab- •tract of remaining articles— Delivery and puniehroent of oruiunal^-Profferod aid in civilixation. In the article of guaranty, which was tho subject of discussion in my last number, the country of the Cherokee nation is called " their land* ; on expression utterly at variance with the notion that tho lands belong- ed to the whites. Indeed, the recent interpretation of our compacts witli the Indians, does great violence to tho ordinary rules of language. Tho seventh article is short, and will bear repeating.— It reads thus : "TiiK United Statk? SOLEMNLY GUARANTY totheChero- KiB Nation ALL THEIR LANDS sot hebeby ceded.;' This seems to be, upon the face of it, a plain sentence. A man of moderate information would at least suppose himself to understand it. He would not suspect that there was a secret, recondite meaning, altogether in- compatible with the apparent one. But it seerns that there waa such a meaning. How it was discovered, or by whom, the public are not in- formed. The present Secretary of War, however, has lately adopted it, and urged it upon the Cherokees as decisive of the whole question at issue. The true meaning of the article, then, as explained by a pub- He functionary thirty eight years after it was made, would have been accurately expressed as follows : " The United States toUmnly declare, thai the Cherokee Indiane have no right nor tUle to avy lands within the / I defend the eing then in th Carolina, d against all the Chero- r the iuV)ject itzerland, he on and inva- and, or even expreiB the B power and > have relied, I few montba state of groat Bi treaty will whether force — StatenMmt of 3 modern inter- ithout this gua- I brothers — Ab- a»l§ — Profierod icuBsion in my 'their lands;'' I lauds belong- our compacts !3 of language. It reads thus : O THE ClIEKO- ;edeu." This m of moderate it. He would altogether in- firc teat such a »lic are not in- lately adopted whole question lined by a pub- luld have been ilemnltf declare, lands within the 27 territory of the United States, as fixed hy the treat!/ 0/ na.*?; but the UniUd Stittes permit the Ckcrokeea to remain on the lands of North Carolina, South Carolina, and Georgia, {south ami tcrat of the above described houndarjf,^ until the said states shall take possession of the same." ... This is the jjuaranty of the Cherokee country ! It m certuinly tlio interpretation of the Secretary of War. How woul<< other tronlics bear a similar explanation? The newspapers tell uh, that Hussiii, Great Britain, and France, have engaged to guaranty \\w territory of Grcec6 within certain limits. Does this mean that the Orooks are to bo per- mitted to live, for the present, on lands which belong to the Turks ; but that the Turks, whenever they please, nmy lake poi»st'f'i*ion of their own lands, and massacre the Greeks ? The Federal Constitution says, (Art. IV. sec. 4,) "The United State* shall guaranty to every state m this Union, a Republican form of government ;" the true meaning of which may horoaltor appear to be as follows : " The United Htatos shall permit ouch stntt* to Imva a Republican form of government for the present ; and until a monar- chical form of gooemmenl shall bo imposed u|>on the people thereof." The true meaning of an instrument is that which was in the minds of the parties, at the time of signing. Can the Secretory of War prove *hat Central Washington understood the treaty of I lolston, according to the explanation now given ? Can he prove that the Chorokoo chiefc and warriors understood it in the same manner ? Surely he would not have it signed and ratified in one sense, and carried into olVoct in a to- tally different and opposite sense. He must thoroforo suppose, that the Cherokecs intended to admit that they had no right to • their own lands,' and that they stood ready to remove wltonovor roquostod. But he must allow, that, if this were the meaning of the parties, it was very strangely expressed ; and however sincerely he nmy entertain the newly discovered opinion as to the meaning, ho may still find it extremely difTicult to convince the world that ho is right. Will the Secretary of War guaranty his country against any loss of character, as a consequence of adopting his intorprolation ? Whom will he get for sponsors and compurgators ? Can ho engage that im- partial and disinterested men will bo satisfied ? And if they will not, or if there is danger that they will not, should ho not distrust his own conclusions ? And may he not have arrived at them without ■uflicient ekamination ? Not to dwell longer on the words of the article, !• it credible that the Cherokees would have signed a treaty, in the year 1791, if they had been plainly told that the United States did not acknowledge them na a separate people ; that they had no righu, nor any lands ; that they lived upon their ancient hunting grounds by thd permission of the whites ; and that, whenever the whites required it, they must remove beyond the Mississippi ? At that very moment the Cherokees felt strong. They and the neighbouring tribes could collect a formidable force. They had an illimitable forest in which to ronge, with many parts of which they were perfectly acquainted. They could have driven in the white settlers, on a lino of more than 600 miles in extent. Many a Braddock'8 field, many a St. Clair'a defeat, many « battle of Tippa- H !' It 'I f: 28 canoe, would have been witnessed, before they could have been expelled from their swamps and their mountains, their open woods and their im- pervious cane-brakes, and fairly dislodged from the wide regions on this side of the Mississippi. The people of the United States wanted a peace. We invited the Cherokees to lay down their arms. We spoke kindly to them ; called them our brothers, at the begiiining of every sentence ; treated them as equals ; spoke largely of our future kindness and friendship ; and shall we now — I speak to the people of the United States nt large — shull we now hesitate to acknowledge the full force of the obligations by which we bound ourselves ? Having, in the days of our weakness, and at our own instance, obtained a peace for our own benefit, shall we now, merely because no human power can oppose an array of bayonets, set aside the fundamental article, witnout which no treaty could ever have been made ? But I must proceed with other parts of the compact. Art. 8. If any person, not an Indian, shall settle on any of the Cherokee»' luids, he shall forfeit the protection of the United States, and the Cherokees may punish him. , . ., , j e Art. 9. No citizen of the United States shall attempt to hunt on the lands of the Cherokees ; nor shall any such citizen go into the Cherokee country without a passport from the governor of a State, or Territory, or such other person as the President of the United States may authorize to grant the same. Art. 10. and 11. Reciprocal engagements, in regard to the delivery and punish- ment of criminals. .„ „ • r »• 1. 11 Art. 12. No retaliation or reprisal, in caso of injury, till after satistaction shall have been demanded and refused. . Art. 13. The Cherokees to give notice of any hostile designs. Art. 14. "That the Cherokee Nation may bo led to a greater degree of civili- sation, and to become herdsmen and cultivotors, instead of remaining in a state of hunters, the United States will, from time to time, furnish, gratuitously, the ■aid nation with useful implements of husbandry ; and further to assist the said nation in so desirable a pursuit, and at the siinc time to establish a certain modo of communication, the United Stales will send such and so many persons to re- side in said nation, as tlicy may judge proper, not exceeding four in number, who •hall qualify themselves to act i.s interpreters. These persons shall have lands assigned by the Cherokees for cultivation for themselves and their successors in office; but they shall be precluded exercising any kind of traffic." ... , Art. 15. All animosities to cease, and the treaty to bo executed m good faith. Art. 16. The treaty to take effect as soon as ratified, by the President of tha United States, with the advice and consent of the Senate. • The Treaty was signed, in behalf of the United States, by William Blount, governor of the territory south of the Ohio, and by forty-one Cherokee chiefs and warriors in behalf of the Cherokee nation ; and was afterwards duly ratified by the President and Senate. A few remarks seem to be demanded on several of these articles. In the ninth, the country of the Cherokees is again called their " land*,'" as it had been twice before ; and the citizens of the United States are strictly prohibited from attempting to hunt on said lands ; nor could any of our people even enter the country without a passport. The tenth article, which is baiely mentioned in the preceding abstract, provides, that " if any Cherokee Indian, or Indians, or person residing among them, or who shall take refuge in their nation, shall steal a horse en expelled nd their im- ions on this invited the lem; called ted them as ; and shall e — eliuU we ns by which , and at our 11 we now, layonets, set d ever have le Cherokees' herokeca may 1 the landi of untry without ' person ai the ry and punish- tisfaction shall egrco of civili- ing in a state atuitously, the assist the said 1 certain mods persons to re- n number, who lall have lands ir successors in n good faith, resident of tha i, by William I by forty-one nation ; and liese articles, leir " landi,^* ed States are nor could any ding abstract^ 3rson residing i steal a horse from, or commit a robbery, or murder, or other capital crime on any citizeficpr inhabitants of the United Slates, the Cherokee nation shall ba bound'io ^/iwr Aim or them up, to be punished according to the laws of the Uiiiled States." Thus it appears, that if a party of Cherokees should commit murder in the white settlements, upon citizens of the United States, the murder- ers could not be pursued a foot within the Cherokee boundary. Nay more, if one of our own people shou.* commit murder, or any other capiul crime, and should take refuge in the Chrrokee nation, he could not be pursued, however flagrant the case might bo, and however well known the criminal. The Cherokees must arrest him in their own way, and by their own authority ; and they were bound by tliis treaty to do, what by the laws of nations they would not have been bound to do, that is, to deliver up criminals for punishment. Neither the United States, nor any particular State, had any jurisdiction over the Cherokee coun- try. But the next article, which my argument makes it necessary to quote at large, is, if possible, still more decisive of the matter. "Art. 11. If any citizen or inhabitant of the United States, or of either of the territorial districtt of the United States, shall go into any town, settlement, or territory belonging to the Cherokees, and shall there commit any crime upon, or trespass against the person or property of any peaceable and friendly Indian or Indians, which, ifrommitled tcilhin thejurudiction of any Slate, or within the ju- risdietionaf either of the said districts, agaimt a citizen or any white inhabitant thereof, w ould be punishable by the laws of such State or district, such offender or offenders shall be subject to the same punishment, and shall bo proceeded aguinst in the same manner as if the offence had boon committed within the jurisdiction of Ike Stale or district to which he or they may belong, against a citizen or white in- habitant thereof." If there is any meaning in language, it is here irresistibly implied, that the Cherokee country, or " territory" is not " witliin the jurisdiction of any State, or within the jurisdiction of either of the territorial Districts of the United States." Within what juripdiction is it, then ? Doubtless within Cherokee jurisdiction ; for this territory is described as " belong- ing to the Cherokees,''— one of the most toiciblc idiomatic expressions of our language to designate absolute property. What then becomes of the assumption of jurisdiction over the Cherokees by tlie State of Geor- gia ? .'his question will be easily decided by the man who can tell which is the strongest, a treaty of the United States, or an act of tlie Legislature of a State. The treaty says that the Cherokee territory is inviolable ; and that even white renegadoes cannot be pursued thither. A recent law of Georgia declares the greater part of the Cherokee country to be under the jurisdiction of that State ; and that the laws of Georgia shall take full effect upon the Cherojtecs within less than a year from the present time. The Constitution of the United States (Art. VI.) has these words : " All treaties made under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the laws or Constitu- tion of any State to the contrary notwithstanding." The question of ju- risdiction is, therefore, easily settled. But the full acknowledgment of the national rights of the Cherokees, and of the sacredness of their territory, is not all that the treaty con- tains. The fourteenth article was framed expressly for the purpose of 9» preserving nnd perpefuailng the national exiitcnce of the Cherok«es. Tliat they njighl " be led to a greater degree of civilization'' appeani to have been a fa 'ourite design of thfl Ameiican government. With a view to this object, nnd that they might " become herdimen tmd cultieatora," the United States proffered some important advantages ; and it is by tho aid of these very advantages, and by the co-operation of faithful teachers and missionaries, that the ('herokees have been led to " a greater de- gree of civilization" than any q|^er tribe of Indiana. So undeniable is this fact, that Georgia has complained of it ; and the government has been blamed for doing those things, which the United States were bound to do by the most solemn treaty stipulations. In a word, the treaty of Holston is a plain document, having a direct object. It is consistent with itself. It does not contain the most distant implication, that any portion of the human race, except the Cherokcea themselves, had even the shadow of a claim upon the Cherokee territory. It guarantees that territory to its possessors as their own absolute pro- perty ; accepts grants from them ; and engages that the United States ahali befriend them, in their future efforts for improvement. That tho Cherokees have never forfeited the benefit of these stipulations will ap- pear in subsequent numbers. > No. VIII. Third trtaty, 1793— Fourth treaty, oriecond treaty of Philadelphia, 1794— Gua- ranty of another Indian treaty —Fifth treaty, or first treaty of Tellico, 1798— Th« guaranty repeated, and declared to be/orevtr — The construction of former trea- ties confirmed — No shadow of evidence on the other side. On the nth of February, 1792, an additional article was signed at Philadelphia, by Henry Knox, Secretary of War, for the United States, and seven chiefs and warriors in behalf of the Cherokees. As this arti- cle was the result of a distinct negotiation, held seven months after tho execution of the Treaty of Holston, it may with propriety be called the TuiRD TREATY between the United States and the Cherokees. It pro- vided that the annuity, given by the fourth article of the next previous treaty, should bo raised from g 1,000 to g 1,500 ; and it declared that this annual sum was given «* in consideration of the relinquishment of lands," which had been made in that treaty. Of course, the United States admitted, that the Cherokees had possessed lands, on the outside of the limits established by the treaty, which landa they had relinquished to the United States. This additional article was a confirmation of the Treaty of Holston, after ample time had elapsed for consideration : FOURTH TREATY V/ITH THE CHEROKEES. This document was executed at Philadelphia, on the 26th of June, 1794, by Henry Knox for the United States, and thirteen chiefs-for the Cherokees. After apreamble, which states that the treaty of Holston " had not been fully carried into execution by reason of some misunderstanding," and that the partiea were " desirous of re-establishinK peace and friendship," j4»~i^..»aw». I7herok«ef. nppcars to Vith a view UtitMitora," it is by the ul teachers ;i-eatGr de- (Icniable is rnment has rere bound ng a direct lost distant Cherokcea e territory, solute pro- lited States That tho ms will ap- 1794— Out- ),1798— Th« 'former trea- 3 signed at ited States, LS this arti- la aAer tho i called the !s. It pro- (t previous clared that lishment of the United the outside clinquished tion of the Eitjon ; fi of June, iefs'for the at been futly tthe partiea 31 Abt. lit deolu-et, " thai the laid treaty of Holtton ia, to all intenU and purpo- aei, in AiU force, and binding upon the laid parties, ai well in respect to Ihe boun- dariet therein mentioned, as tn alt other reipecit uhalerer" Aar. 2d utipulates, that the boundarits shall be ascertained and marked, when* ever the Cberokoes shall have ninety days' notice. Aet. 3. " The United State., to evince their justice by amply compensating tho aaid Cherokee Nation of Indians for relinquishments of land," made ' by tho treaty of Hopewell and the treaty of Holston,' agree to give to the Cherokees, in lieu of former annual payments, |'>,000 a year in goods. Aar. 4. The Cherokees azreo that J50 shall bo deducted from their annuity for every horse stolen by any of ihoir people from the neighbouring whites. Aar. 5. These articles to bo permanent additions to the treaty of Holston, aa soon as ratified. They were soon aAer ratified by President Washington and the Senate. It has appeared, in the course of this discussion, that tho treaty with the Creeks, in 1790, was the basis of the treaty of Holston in 1791. This was confirmed in 1792, and again, expressly and solemnly, in 1794. Thus we have four di-stinct documents, which xeceived the approbation of General Washington, and his cabinet, all agreeing in the same princi- - pies, and all ratified by the senate of the United States. Several other treaties, in which the enme principles were involved, were fonnod with other tribes of Indians, during the same administration. In one of these, the United States engage, that they • will never claim the lands reserved to the Indians ;' but that the Indians ' shall have the free use and enjoy- ment thereof, until they choose to sell the same to the people of the United States.' FIFTH TREATY, OR TREATY OF TELLICO. This treaty was signed " near Tellico, on Cherokee Ground," Oct. 2, 1790, by Thomas Butler and George Walton, commissioners of the United States, and thirty-nine Cherokee chiefs and warriors, \n the pre- sence of Silas Dinsmoor, Agent of the United States among tho Che- rokees, and thirteen other witnesses, among whom was the late Mr. Charles Hicks, who acted as interpreter on tho occasion. The treaty begins with a long preamble, stoiiing tho reasons why it was neces- sary to make another treaty ; and among tbe reasons ore these two clauses ; vi>. »' for the purpose of doing jrutiee to the Cherokee Aa/ton of Indian* ;" and " in or- der to promote the interett and laftty of the State?." Art. 1. Peace renewed and declared perpetual. Aar. 2. The treaties subsisting between the parties in full force ; " together with the eomtmetion and usage under the respective article* ; and to to continue" Art. 3. Limits to remain the same, "where not alterea by the present treaty." Art. 4. The Cherokee Nation " do heftsby relinquish and cede to the United States all the lands within the following points and lines :" [Here follows a boun- dary, by which a considerable district of land, now in East Tennessee, was ceded to the United States.] Art. 5. The line described in the treaty to be marked immediately, " which said lii\5 shall form a part«f the boundary betuiecn the United State* and the Chero- fcec JVo/ion.'' Art. 6. In consideration of tho preceding cession, the United States agree to pay 15,000 on signing, and ^1,000 annually, in addition to previous stipulations of this kind; '^and tnill continue Ihe GUARANTY or thb rbhainoer or thbir cotJNTRV FOREVER, as made and contained in former treaties." Art. 7. A road granted by " the Cherokeo nation," across a small corner of their country, to the citizens of the United States ; and in consideration of this grant, the Cherokees are to be permitted "to hunt and take game upon the lands a f VI 4 1 1 rtlinquUhtd and ceded by thU treaty," unUl MtUemenU ihall make lueh huntiuf improper. ^^^ ^^^,^^ ^^ ^^ ^^^^ ^^^^^ payment of the annaa! ftip«ndii, and th« United gutei to furnish proviiioM for a reawnable number of Chorokeee, who ihall aaaemblo on lhe«e occawoM. . r l .u. fT»n.^ A«T. 9. Hor*e. .tolen from Cherokeei by white., to be paid for by '»>• U"^* SUtee; and horse, .tolen fVom white, by Cherokee., to be paid for by a deduction *^Alil.*o"The^'Agent of the United SUte. re.iding among the Cherokee, to have a eufflcient piece of ground allotted "/or hU temporary use. ^^ L..tly : thi. Ueaty to " be carried into effect on both .ide. "f?'* °«f "'f/''},'*/ Tho treaty wa. ratified .oon after, by Prewdent Adam., and the Senate of tho United State.. . A few remarks on this treaty may not be improper. The words cede, nation, and guaranty, are used m the same sensM here, as in the treaty of Holston, seven years beforb. Durmg the in- terral, the government of the United States had been frequently em- ployed in making treaties with various tnbes of Indians ; and it is safe to say, that in no period of our national history, was the meaning of public documents more thoroughly weighed, or the tendency and ulU- mate effect of public measures more seriously considered ; and the world may be challenged to produce an example of tho administration of a government over an extensive territory, and over a people m new, various, and complicated relations, in which fewer misUkes, either theo- retical or practical, were made, than during the administration of General Washington. . . The parties were so careful of the inviolability and integrity of the Cherokee territory, that the use of a short road, in the northern extre- mity of that territory, (now in the State of Kentucky,) at a great dis- tance from the actual residence of the Cherokees generally, was made the irround of a solemn treaty stipulation, and an equivalent was given for it. Nay more, the Agent of the United States, residing among the Cherokees to distribute the annual payments, to encourage the naUves in agriculture and manufactures, and to execute the treaties m other respects, could not claim even the temporary use of land for a garden, or a cow pasture, till this small convenience was allowed him by treaty. The United States not only acknowledge former treoties, and declare them to be in full force ; but " the construction ai^ usage under their respective articles" are acknowledged, ratified, and declared to be the rule of future usage and construction. This is a very remarkable pro- vision : and was doubtless adopted to quiet the Cherokees in regard to encroachments feared from the United States, ^he construction and usage, under the previous treatie3,/an be proved at this day, by living witnesses, and by public archives, to have tended invariably to this one point— that the Cherokees were to retain tho unimpaired sovereignty of their country ; and that to enable them to do this permanently, and in the most effectual manner, they were to be taught aU the common arts of civilized life. To this course they wercurged, '" «'« ™°«^|; fectionato manner, by letters written with General Washington sown hand. This was pressed upon them at every council, and »"^'>!j"f "y '" private, by the Agent of the United States, in pur^uancp of written and verbal instructions from the head of the War Department. No histori- cal facts can be proved with more absolute certainty than these ; and there is not, it is believed, even the pretence of any evidence to tfte con-^ trary. J eh hunting da, and Um uktM, who the UniUd L deduction Iterokeei to foodfailh." mate of th« me sensM ing the in- lentiy em- , it is safe leaning of y and ulti- ; and the inistration le in new, ither theo- tration of rity of the icrn extre- great dis- was made was given among the lie natives 3 in other a garden, by treaty, nd declare inder their to be the kable pro- TCgird to uction and , by living iy to this overeignty lently, and e common e most af- Tton's own ibitually in irrittsn and No histori- hese ; and ;o the con- ) J It appears, moreover, in the preamble to this treaty of Tcllico, that the " miaunileralandinga" had arisen, liecausc white settlers had trans- gressed the C'lierokco boundary, "conlrnry to the intention of previous treaties ;" and tlmt these intruders had been removed by tiic authority of the United States. Again : this treaty was nejrotintcd by Gcoriio Walton, a citizen of Georgia, in whom that state reposed great confidence, and by Thomas Butler, commanding the troops of the United Slates, in the state of Tennessee ; and it was executed, (to use its own language) " on Chero- kee ground." Thus, the country of the Chcrokees is called, as T have already shown, " their lands," their " territory," " their nation," and their " ground." These epithets are used, not by careless letter writers, nor in loose do- bate ; but in tlio most solemn instiumenis, by which nations bind tiiem- selves to each other. And what is there on the other side ? Is it said, or implied, th;it the Chcrokees had a qualified title ? a lease for a term of years ? a riijht to hunt till Georijia should want the land for growing corn or cotton ? the privilenreof administerin;,' their own laws, till Hcor- gia should exercise her rightful jurisdiction, ns a sovereign and inlepen- dent State ? Is tliero any thing that looks this way ? .Not a word ; not a syllable; not the most distant hint. While it is asserted in various forms, and implied more than a hundred times over, that the Cherokees were a nation, capable of tre iting with other nations ; that they had a country, which was acknowledjjed to be indisputably their own ; that they had a government to punish criminals and to deliver up renegadoes ; and that they wore to become a civilized people, permanently attached to the soil ; there is hot, in all these instruments, a single intimation, or ground of [ilausible argument to the contrary. Lastly this treaty not only adopts the word "guaranty" from the treaty of Holston, but interprets it, (as every civilian in Europe and America would have done,) to be applicable to " the remainder of their country FOREVER ;" that is, (lor the meaning can be no less,) the Chcrokees were to retain the clear title and unincumbered possession of the remainder of their country, which they previously had of the whole ; and such title and possession were guaranteed to them forever, by the power and good faith of the United States. No. IX. Guaranty to the Del&warei, in 177&— In^atitude of not giving a fair conttmetion to theie treaties— Sixth compact with the Cherokee*, 1803--Caution in the ;>rMeryation of their righU— Use of the word Father— Second treaty of Telli- CO, or seventh compact, 1804— Third treaty of Tellico, or eighth compact, 1805. The idea of a guaranty, and of a country, as a territory belonging to Indians, was not new, even at the period of the treaty of Holston. The first treaty, which I have been able to find, made with Indiana h !t !? 91 bf the Unite«1 Sui«i !" 'Heir eonWeratea chiraeter, wn execntp.l at Fort Fitl, on the I7tl. > . Septeiuhcr, l"l>. It containi the JollowinR very rflonarkable article : - Aat. 6. WhMt.t the •ncmie* of th« Unit.d 8t«t«< h**. •ndemvo.irfd, by •»•- rr arlificB in ihmr pow«r, to po.«.M iHb Indian, in IJ. ..cr»l wUh Iht o|.n..on that it ?|J|. d..iin of th, 8t.U. .forcaid to extirpate the Indi.n.. .nd l.ke Po-«=-'°'' of their co'untry ;-to obviate ...ch fal^ .ugK.Mion the United «'•;«• J" •"«•«• to guaranty to the aforewid nation of Delaware, and their heir., « "'h"^'« ^""^^Vj; British empire, and when every accession of strength to the American cause, and every =»ubtracUon from the power of the enemy, was a mat- "r of\rt,«t imporunce. Nor should it be forgotten, that other treotie. formed with thi Indians, after the peace of Great Britain were extremely desirable to the United States; that the exhausted treasury of the na- tion could ill afford the expense of Indian wars; that the Indian had the undisputed possession of boundless forests, on all our ffO-iOe"; that many of them had endured public and private injuries, which we«i unavenged and uncompensated; that the Indian tribes were strong, compared with their subsequent decline and their present total want of power ; and that the United States were weak, compared with their pre- sent gigantic strength. -;„„i- Though the treaties were formed in such circumstances, not a rngle article b^re hardly, or oppressively, on the United States, or on the new settlers. The Indians claimed nothing unjust or unreasonable. 1 he early negotiations wear the aspect of mutual benefit, and appear to have been conclude, with a desire to secure permanent peace to the parties, founded on the acknowledgment of their mutual rights. Are the people of ll« United States unwilling to give a fi»'^ "ndid, «nd natural construction to a treaty thus made ? I might say- Are they unwilline to give it the only construction of which it is capable^ Are they unWillini to admit a meaning which stands out P'om»nently upon nlie very fcce of the transaction, and which no ingenuity can ^»»°^. p«v«rt, or evade ? Will they refuse to be bound by the plainest and 3i Bcntnl at rrd, by •»•- iiiion that it n poueMion ■ «lo engaga I'lr Ifrnlort- ided by for- )y, and hold reed on, ba- luciva to the been frienda and to form rimlalion in id aaconclu- id meet with f a national iA-« pottts- A calumny, and the In- , (hey might lis last pro- trial riglits, inner as the d rcpublica, the United force of the e American wns a mat- iher treaties re extremely f of the na- Indians had r frontiers ; which were rere strong, )tal want of th their pre- not a single ■ on the new nable. The pear to have I the parties, fair, candid, ly, Are they pable ? Are linently upon can distort, plainest and most solemn enfrogemcnts, deliberately formed, ratified, acted upon, crnfirincd, r.ititicd a-j^tin and ajjain by the hiu:he:tt authority of our rs' public ! Huw can it for a inoincnt be apprehended, that the co-ordinate branches of our tiuverninctit — our h\)/,\t, lc(;i»lative, executive, anri ju- dicial function uries, will luaiiifeiit su total a disre((ard of every principle of public niorahly ! ilXTH COMPACT WITH THE CHEROKEES. This instrument wii« executed on the '20tli of October, 10O3, by Re- turn J. Moil's, Agent «)f Ihn llnitwl States arnonsr the ChoroLees, and by fourteen ( hcrokee chiefs, bejjinninK with Black Fox, the principal chief, and oiidin^ uith tlin ftinniis Jnnics Vniin. Ft wum witnessed by five ofTiccrs of the United States' Army, and three otiier pcrsioni, one of whom was Cliarlos llicks, then actinj; an interpreter. 1 have called it a compact, not a treaty, becaii.ie it was not sent to tlie Senate fot ratifi- cation. Hut tliou^gusta, Georgia, to Knoxville and Nashville, Tennessee. [This has usually been ci>lled the Federal Road. It has been much travelled ; and great quantities of merchandise, and other valuable properly, have been transported over it.] It was to be mado solely at the expense of tho United States. The article also provides, that when the road ia opened, tha direction of it shxll not bt changed ; and that uo branch or branches (except one v.'hich had been described) " snail ever be permitted to be opened without the eonitnt of the Cherolcee nation." Art. 2. The Cherokecs reserve to themselves the income of the ferries ; and specify where the ferries shall be kept. Akt. 3. Various regulations respecting houses of entertainment, whiok the Cherokees were to establish ; keeping the road in repair, die. &c. Art. 4. No neat cattle from the southern States shall bo driven through the Cherokee nation ; and when horses are taken through, the number of them shall be inserted in the passport of the owner. The Cherokee* not to be answerable for estrays from among the animals of the whites. Art. 5. Officers, civil and miUtary, mail carriers, and some other elasacs, M- empted from toll and ferriage. Art. 6. Coramissionors to bo appointed on each side to survey and mark the road. Art. 7. One copy of this agreement to be sent to the Secretary of War, an- other to be left with the principal Cherokee Chief, and a third with the Agaat of (ha United States among the Cherokees. Tb« road w«« onencd tlia following year, and hii now been tnytWti for a quarter of a cenlury ; an.l. during this whole tunc, has KTeiH\y facililated intercourse between dillerent parts of the aoutlicrn atatct. No reader of the f<)re«oin(( abstract can be ho dull a» not to perceive, that the nrivdeKO was framed to the I'nitcd Stales, at the ^peciul tn- •tanco of the President ; that the Chorokocs were extremely cnutioua not to compromit Iheir territorial rights ; that ihoy made the ^rant from motive* of friendship, ur.d a willinunoss to afford the desired acconmio- dation. They gunrd, in a suitublo manner, ntjauisl vexations and lia- bilities, to which this act of kindness iniwht be thoucht to e: pose them ; and they reserve the income of the ftMries, some of which arc over con- siderable rivers, and Imvo been quite profitable. The word • F.iliier* is repeatedly used in this document, to uiclicata the relation which the President oflh.- Unitc.l States hnld to "'C ^""o- kees, as their protector from npyresnion, and as bound to sec that tlie treaties with them arc carried into effect " with nil good faith. >Vo had obtruded the word upon them. Wo had put it into their mou hs, and it was made the staiidinjf pledge, not merely of our justice, but of our kindness and Rcnerosilv towards them. Shall this sacred and vene- rable name be prostituted to purposes of injustice and oppression . for most asauredly, it will bo deemed oppression, .-nk opi.rcssion, «f we «l'«- own our enffagements, forswear our most solemn covenants, and then take possession of the lands of our poor neighbours, which had been se- cured to them by the highest guaranty which we could make, rsor will the oppression bo less odious on account of its being accompanied by professions of great benevolence, and the promise of a new guaranty. SECOND TREATY OF TELIJCO OR 8FVF.NTH NATIONAL COM- PACT WITH THE CHEROKEES. This instrument was executed •• in the garrison of Tellico, on Chero- kee Rround,"K3ctobor 24, 1804, by Daniel Snutl. and Return J- Me'^»; for the United Srttes, and ten chiefs and warriors for the Cherokees, in the presence of five witnesses. The preamble says, that certain propositions were made by the Com- missioners; that they were considered by t lie Chiefs ; and »'«» ' 'h« parties aforesaid have unanimously agreed and stipulated, as is definitely expressed in the following articles :" Aar. 1. " For the con.ideration- hereinafter e,pre«ed. the Cl""^" ""°" «; Hnjulkand cede to the United States, a tract of land, boundrng, f'^- W'"' wara.maUtr"ct. called Wafford . Settlement, conl^^';;^';„^„^V ^^ upon aigning the pre.ent treaty," ihall pay thoCherokee. f'-'W^. » e''"^* «^ money, at the option of the Cherokee., and ^1,000 aonually, m addition to tha previsua aonuitie*. the treaty was ratified by President Jefferson and the Senate The " relinquishment and cession" are of the same nature, ""^ ="7;;^'* them the same implications, as Iiave been described in preceding com- Dientf. flA^t^ - ---Vi'At^ifc -^- 37 traYelTed 1 grealiy tales. pcrceWei [leciul in- cautious rant from ccomnio- I and lia- no them ; over con* indicata le Chcro- 1 that the ih." Wo ir mouths. Ice, but of and vene- ion ? For if we dis- , and then d been ae- ike. Nor ;ompanied guaranty. JAL COM- on Chero- I J. Meigs, Brokeos, in THIRD TREATY OF TELLICO. OR LIOHTH COMJ'ACT WITH THE CHF.KOKF.Eg. Thia treaty was cxeniled October 2r», I COS, by two Commi^sionera of the United State**, and thirly-tlireo Chcrolkco chiefi and warriors, in the presence of ten witncs-'C?. AsT. 1. " Fnrmnr tr»ali«i roooitnincd and cotitinurd in lurrr. AsT. 3. " Tiio Churokeei quil ilatin and eiHf to tlie I'liitnd Statei, all Hio land whicli thcjr [tho Chorokoei] have herelolbre rlaimnd, lyin;; t.> the north uf Ihs foilowin;; boundary line ;" [Tho land* hero ceded were of ((teat value, and fell into the State of Tennewee, extending cant and went, near the central parti of that Bute.] Art. 3. " In coniideration of thn ahovo irnion and rtltnqxtiihmtnt, tho United State* agroo to pay immediately," $14,000, and |J,(NJ0 a year, in addition to pre* Tioue annuitiPA. Art. 4. 1'hu citizens of the United State* to havo tho free and nnmolcited u*« of two roadi, in addition to those prcviouily oilalilinliod ; one luading from Ten- neaien to Georgia, and the other from Tenncwoo tu tho aottlemont* on th« Tom* big(>ee. Theiio road* to be marked out by men appointed on each (id* tor tha purpose. Art. 5. Thi* treaty to take cfTccI, "ns icon a* it i* ratified by the Prciident of th« United State*, by and with Uie advice and eonnent of tho Senate of the lame." Tho treaty wns ratified by Prcsi(Icnt Jcflcrson and tho Senate. It will be observed, that the first orlido contains an express recognition of pre- vious treaties, and pledges tho faith of tho United States anew fur tho fulfilment of those treaties. Several documents of this kind remain to be considered ; but I engoge myself io you, Messrs. Editors, and to your readers, that I will be as brief as possible, consistent with fidelity to tho cauio. This is a serion matter to the Indians and to tho people of the United States. It is a matter which must be decided by the great body of the people, tlirough their Representatives in Congress. The people must tlierefbre have the means of understanding the subject. ^ tho Com- tliat " the 8 definitely :m cation re- Slc. [This ot more than nd Georgia.] Initcd States, , in goods or dilion to Ihs nate. The 1 carry with ;eding com- No. X. Foarth treaty of Te'lico, or ninth io them.eln., qviUhtm and «rf« to • United States tho said nection of land, undcrstandmg, at the same time, that the buildings erected by the public are to belong to the public, a« well a. t''" """f^ t^^n of the same during the pleasure of the Government. We also rede to the United States tho first Island in the Tennessee above the mouth of the Clinch. Art ° The Chcrokccs grant a mail road to tho United States, from Tellico to the Tombigbee, to be laid out by viewers oppomtcd on both sides. AiiT.3. "In consideration of tho above ersswn and rdmquxskment, the United States agree to pay to tho said Cherokee Indians, ^1,C00." Art. 4. The treaty to be obligatory when ratified. Within a year or two past, as I have already said, the politicians of Georcia have contended, that the national povemmcnt has no authority to make treaties with Indians living, as they describe the matter, " w'lhin the limits of a sovereign and independent State." 1 he fact is, that the national .rovernment is tlieonly competent authority, under the federal constitution, to enter into anv engagements with the Indian tribes, which vet retain their organization as separate communities, and are acknow- ledged to possess a title to land wiliiin definite limtts. The uniform practice of the government has accorded with these principles ; and Georgia herself has, until very lately, been urging Congress and the Executive to hold treaties with the Cherokees. t . .i.- How did the State of Tennessee understand this subject? Let the first article of the preceding treaty answer. The legislature of Tennes- see, desirous of obtaining a site for the erection of buddings to accom- modate their state government, sent a committee to view tlie point, at the junction of two beautiful rivers, the Tennessee and the Clinch. Ihe boundary, as it then stood, ran very near tliis point ; and the State so- licited a square mile for the public object above described. The Chero- rokees, out of a spirit of conciliation, and for jj 1,600 ,n money, ceded the section of land with these remarkable reservations, viz. that they were to retain the ferries at the seat of government oil lennessce ; and that the grant was made for public objects only. Of course, the land would revert to the Cherokees, if the seat of government should be re- moved. As the legislature afterwards fixed the seat of government tar ther west, no public buildings wore erected at this place. Narrower boundaries were subsequently established between the United States and the Cherokees ; but the ferries were iield for a long time, if they are not now held, by assignees of the Cherokees. The treaty was ratified by President Jefierson and the Senate. This whole transaction strongly illustrates several important positions, which have been taken, or implied, in the preceding discussion ; such as the inviolability of tho Cherokee territory ; the right of the Cherokees to make or withhold cessions of land, according to their pleasure ; their right to impose such restrictions upiin their grants as they pleasea ; 39 il by the ther, that nd which ly of the lion, hav- ! of eonei- , for indi- ede to tlie that the o occupa- edo to the :-Hnch." Tellico to ;he United iticians of authority , " within I, that the le federal ics, which ! acknow- e. uniform pies; and ss and the Let the f Teniies- to accom- I point, at linch. The State so- 'he Chero- ney. ceded :. that they essce ; and le, the land ould be re- rnment far Narrower States and hey are not ratified by it positions, on ; such as ! Cherokees I- pleasure ; ley pleased ; and the treaty-making power of the United States being the only me- dium hy which a State can get a proper title to Indian territory. TREATY OF WASIIINOTO.V OR TENTH COMPACT WITH THE CHFROKEES. This treaty was negotiated at Washington, January 7, ICOC, hy Hen- ry Dearborn, Secretary of War, and seventeen Cherokee chiefs and warriors. The object appears to have been to adjust certain chiiins of the Che- rokees and Cliickasaws to the same land:^, lying between the Tennessee river and Duck river, in what is now West Tennessee. 'I'his was done by obtaining a relinquishment to the United States of " all the right, title, interest and claim, which the Cherokees, or their nation, have, or ever had," to the tract described, except that two reservations of small portions of this tract are mado by tho Cherokees. The United States give 10,000 dollars, and certain privileges, in consideration of the above relinquishment. The United States also agree to use their influence to have a certain boundary establiriiied between the Cherokees and Chickasaws, on the south side of the Tennessee river ; " but it is understood by the con- tracting parties, that the United States do not engage to have the afore- said line or boundary established, but only to endeavour to prevail on the Chickasaw nation to consent to such a line, as the boundary between the two nations." Here it is implied, in the strongest manner, that the United States had no right to encroach upon Indian territory, or to fix boundaries between neighbouring tribes ; and that these tribes had, as separate na- tions, the unquestioned power to settle their own boundaries. The governnoept of the United States was willing, however, to act the part of a mediator in the adjustment of the boundaries. — Katilied by Mr. Jefferson and the Senate. TREATY OF CHICKASAW OLD FIELDS ; OR ELEVENTH COMPACT WITH THE CHEROKEES. This treaty was executed by Return J. Meigs and James Robertson, on the one part, and five Cherokee chiefs on the other, September 11,1 807. It was made to ' elucidate' the next preceding treaty, or to ascertain the real intention as to the boundary. The Cherokees were to receive ^2,000 I'or ' their readiness to place the limits of the land ceded out of all doubt ;' and it was stipulated that " the Cherokee hunters, as hath been the custom in such cases, may iiunt on such ceded tract, until by the fulness of settlers, it shall become improper." This is the second instance, in which a privilege to hunt on ceded lands is granted ; that is, the Cherokees were allowed to exercise the same rights of ownership, over land which they had quit claimed and sold, and for which they had been paid, as, (if we are to believe the present Secretary of War,) they could ever exercise over any of their lands, which had not been ceded. I am willing to presume, however, that the Secretary of War, after mature deliberation, will abandon a position 80 utterly untenable. This treaty was ratified by Mi-. Jefferson in the usual manner. HFCOND TREATY OF WASHINGTON: OR TWELTH COMPACT BECOiNU ini. wiTHTIIK CHEIIOKEES. The sole object of this treaty was to obtain for South Carolina a small portion "f tr.ountiiinou3 country, lying nt the northwest point of that state. It was executed bv (ioorge IJraham, couirnissioner of the United States, and six Cherokee Cliicfs, March 2->, ICIG. Art 1 " Whnrcas tlio e.xcrutivo of South Carolina has made an application to thri'rowdcnt oflhe United Slut«« to cxlin.iui^h the claim of the Cherokee nation to that Jan of their landB, which lio withm the »'°""''"\«^ "^ '^^ '"J V„ nh ^ * lately citablished and agreed upon, between that stale and ho Htuto of North Ca- rohna rand aH th« CheFoke.. nation U disposed to comply with the wishes of their brothe . of-Soulh Carolina, they have airrcod, and do hereby agree to «rfe to the Stato°f S°"l>' Carohnu, and forever quit claim to the tract ot country contained within the followiMS bounds:-' [Mere the bounds are described, comprismg a Tract now in th. N . W. come, of South Carolmu. The tract wus of small extent and verv little value, na it is uuicm tlie mountains.] ^ „ , ^ ,. , ,, „ Art V The United Stale. ..;;r,. , that the Slate of South Carolina shal pay thrChe;okces r-OOO for this irrant, in ninety days : " Provided, ^ Y\'l'\l-^'Z Ze utiX^oii, kail have, anclwntdllu same .n Cuu«c./ ; •'"'*,l"-°;"^'^,'*,"'*°' '^^M^* Executive of the Slato of South Carolina shall approve oi the stipulations contain- ed in this article." This treaty was ratified bv the parlies ; viz. President Madison and the Senate, and tlio Cherokee nation in council assembled ; and it was doubtless approved by the povcrnor of South Carolina. Here is another perfect illustration of the manner in which the several states obtained a title to lamli^, which had remained the property ol in- dians : though the lands appeared, according to the maps, to belong to those states. White men, uot Indians, made the maps. 1 he northwest corner of South Carolina, as that state appeared on the map, still be- longed to the Cherokee Ino.ans. The state wished to obtain possession of this little fraction of mountainous territory. In a manner perfectly fair and honourable, she applied to the general government, reques ing that the territory might be purchased of the rightful owners. She does not say, that the land belongs to her ; but simply that North Carolina has agreed with South Carolina, as to the boundary between them, when the land shall have been obtained of the Cherokees. She does not pre- tend that the Cherokees are bound, or that their rights are m any de- cree affected, by agreements between third parties. This is a correct view of the subject ; and quite as applicable to Georgia, as to South Carolina, or anv other state. No. XI. Third treaty of Washington, or thirteenth compact, 1816— Claim of the Chero- kees previously recogniEcd-The right to navigate riversin the Cherokee r.,t,on obtained by treaty-Treaty of the Chickasaw Council House, or fourteenth compact, 1816-Preface, or title of the treaty-Rca.oni for the treaty-Ab- stract of it — Remarks upon it. There are four remaining treaties to be examined. Two of them *«-^*fc^. DMPACT na a small [It of that ihe United iplication to okee nation did utato, ai if North Ca- ches of their B cede to the y contained oinprising a small vxient na sliall pay t tiio Chero- lUo, that the lOns contain- [adison and and it was 1 the several perty of In- ;o belong to e northwest lap, still bc- n possession ler perfectly I, requesting . She does rtli Carolina them, when Ices not pre- e in any de- I is a correct as to South of the Chero- Cherokee nation , or fourteenth he treaty— Ab- Two of them 41 were nccotialed by the distinRuislicd poncrnl, who is now the Chief Muilistrate of the United States, and oiio by ti.o dwtin«uwlied Secretary of War, who is now Vice Frcsi.loiit of tho United Staten. On thcso accounts, as wvW as from their inherent importance, they are worliiy of particular attention. THIRD TREATY OF WASHINOTON; OR TIIIRTF.F.NTII NATIONAL iuiivu cOWrACT WITH THE CIIKROKEKS. This treaty was executed on the same day with llio one next proccd- injr • viz. March 22, 1810, and sii?ned by (Jportfo (Jrnhiim lor the Unit- ed States, and six Cherokee chiefs, for tho Cherokee nation. Bomg on a different subject entirely, it was embodied in u soparato document. Art 1 The boundary between thoao partu oftlio Crook and Cliurokoe nationa, which were weat of the Cooaa river, i» uKroud upon. Tho United Statoi, having obtained, by treaty, the Creek land. »voi*t of tho (, tho lenlh com,mel,) "the Unilml H»ttte«, liav.i refOKn.t- fd a claim on the part of tho Cherokee nation to the land* aoiith ol tlio Uitf bend, Art 2 " It ia expressly agreed, on tho part of tho CIn'rokoo nation, that tho United States, shall have the right to lay oH; open, and have llio !>.-« uso ot such road or roads," aa ahail bo needed to open a communication through the Chero- kee country north of tho boundary now fixed. The Dnilod State. iVeely to navi- eato all tho river* and water. "Within the Choroknn nation. .... , Art 3. " In order to preclude any dispute huroaftor, r.dativo to tho boundary lino now established, it is hereby agreed, that Ihc Chcmkre mUon thall appoint Itooeommmionento accompany the commio.ionora, already oppoinlod on Uiepart of tho United States, to run the boundary," Ac. Art. 4. In order to avoid delay, when tho I'ro.idont o. tho United State, .hall wish, at any time hereafter, to open a now road, under tho grant of the second article of thi. Ueaty,«tho principal chief of the Chorokoe nation .hall appmn one commissioner to accompany the commiMionor. appointed by tho 1 resident to ''!\R?.5.''The''united State, agree to pay |25,500 to " individual, of thod'ero- koe nation," on an indemnity for Iobh.'s sustained by thorn, IVoiu tho march of tho United State, troops " through that nation."' Tho treaty was duly raUfiod by President Madi.on and tho Senate. A very few remarks on this document will bo sufliciont. The first article says, that tho United States, in a treaty made ten years before, recognized a claim of tho Cherokee nation to land south of the Big Bend of the Tennessee. What claim ? Doubtless euch claim as the Cherokces made. But they never madu any partial, lim- ited, or qualified claim to their huids. They never sot up a title as tenants for the lives of the existing generation, or tenanU for years, or tenants at will. They simply, and always, claimed tho land aathetr oum ; and this claim the United Stales must havo recognized, il they recognized any claim at all. , . The fact was, that the article hero referred to, as containing a recog- nition of the Cherokee claim, was the one, by which the United States epcaged to prevail on the Chickasaws to agree upon u certain boundary between them and tho Chcrokecs. Thus, tho friendly attempt to hx u boundary between these two Indian nations, was justly construed, m a C if V m 42 treaty ten 3?cars afterwards, to be a recognition of the claims of ihote nations, to the lands on each .side of the boundart/. ]\y articlp sncond it is iiltcoiI, on the part ot' tlie Cherokee nation, that the Iriilnd States .fhall hare the ri'^ht to lay ol^' roads, in a certain part ol'the nalimi, and in a prescribed mainicr. Of course, it mnst be inlerred, that liio Inited States had not tliis rifilit before ; that the as- sent of the Clierokec nation was necessary to invest the United States with the rifilit; and that it must, even when expressly granted, be ex- ercised in the manner, whidi the treaty prescribed. This article speaks, also, of rivers and waters, "within the Cherokee nation;" and stipulates, that the citizens of the Inited States may freely navijiato these waters. Un lookinir at the map of the Cherokee countr\ us it then existed, the reader will find, that besid(! the lliwassee, the ( >.s!anawlee. the Coosa, and many smaller streams, that noble river, the Tonnessee, took a sweep of more than l.jO miles through the Cherokee nation. There was {rood reason to wish for the privilejre of navijratii.fT tbese waters; but how absi d to resort to the trcaty-makiiitr power for the purpose of obtain- ing It, if the country really belonged to Georj^ia and the neighbouring sttitcs By articles ."^d and 4th, it appears, that the Cherokee nation had a government, which the United States acknowledged, as being always in existence, and always competent to transact any national business. TREATY OF THE CFUCKAS W COUNni- HOUSE; OR FOUR- TEENTH COMPACT WITH THE CHEROKEES. This document was signed on the 14 th of September, I81G. The preface is important, and I must cite it at length. " To perpetuato peaco and friendship between the United States and the Cher- okee tril)o or nation of Indians, and to remove ail future causes of dissension which mny arinn from indefinite territorial boundaries, tlie President of the United States of America, by major-general Andrew Jackson, general David Meriwether, and Jesse Franliiin, esquires, commissioners plenipotentiary on the one part, and the Cherokee delegates on tlio other, covenant and agree to the following arlicle« and conditions, which, when approved by the Cherokee nation, and constitution- ally ratified by the govornraent of the United States, shall be binding on all par- ties." It is always to be presumed, that the President of the United States will givo a fair and natural construction to all public engagements made by the proper authority. There are special reasons, why the present incumbent of that high office should respect the document I am now conside.ing, and a similar one, which was executed the following year. The reasons for the treaty, assigned in the preface above quoted, are good and sufficient reasons ; and such as commend iheiuselves to every man's heart and conscience. " To perpetuate peace and friendship be- tween neighbouring communities is a benevolent work, the importance of which much depends on the durability of the relation, to which such phi-aseology is applied ; and to remove all future causes of dissension, which may arise from " indefinite territorial boundaries,'' is .a work scarcely less benevolent than the other. This is the very language, which would be used on a similar subject, by Russia and Prussia, or any two contiguous nations in Europe. ma of those kec nation, in a certain , it must be hnt the as- fiitctl States ted, be ex- icle speaks, 1 stipulates, esc waters, existed, the tlie Coosa, >ok a sweep c \va3 <:ood I ; but how 3 of obtain- ci;h made in the imniediiitc neighbour- hood of the Cherokee coutitry, and s^'itiuml by fiftieii chiefs, was not considered as binding, till it should bo " approved by the Cherokee na- tion." When this should have boon done, and the treaty should have been ratified by the government of the United States, it would be "bind- ing on all parliex.'^ It is humiliating to be obliixcd to prove, thnt parlies to a treaty are bound by it. To |)relend the contrary is an utter i)ervcrsion of reason and common sense. There are persons, however, to whom express covenants seem stronger than unavoidable implications. Such persons are requested to oljseive, that major general Andrew Jackson and his colleagues did expressly, in so many words, " corinnnl and agree,' that the treaty should " be binding on all parties.'' Why is it not bmdmg then ? Where is the promised perpetual peace, if the weaker party is to be outlawed ? Where is the benefit of dejinite territorial boundaries, if these boundaries are not respected ? The following is a brief abstract of the treaty : Art. 1. * P'acc and friendship established.' Art. 2. The western boundary described. It curtailed the Cherokee country on the southwest, and gave to the United Status a tract ofland, now in the State of Alabama. . . , , . .• j j • Art. 3. The Cherokccs relinquish and cede the land just mentioned, and, m consideration thereof, the United Statesagreo to pay $5,000 in CO days, and $6,000 a year, for ten successive years. Art. 4. The line to bo plainly marked. o .. „ •. j o. . Art. 5. The Cherokee nation to meet the commissioners of the United fetatei at Turkey-town, on the 28th of thi same month, " there and then to express thnr approbation, or not, of the articles of this treaty ;" but, if th« nation did not assem- ble, it would bo considered " at a tacit ratification" On this treaty I would observe, that there are several things in it worthy of special commendation ; viz : the solicitude to avoid future difficulties, the uncommon care manifest in article fourth, (which a re- gard to brevity prevented my citing at large,) to have the line of terri- tory made jilain ; and the repeated and explicit acknowledgment, that the Cherokees were to express their approbation of the treaty, before it would be binding. Of course, they were to be dealt with as intelligent and moral beings, having rights of their own, and capable of judging m regard to the preservation of those rights. It must be presumed, that the commissioners of the United States were at Turkey-town, on the 28ili of September, the day appointed for the ratification ; but whether the Cherokees were dilatory in assem- bling, or whether strong arguments were necessary to obtain their con- sentT does not appear. Six days afterwards the transaction was closed, as is proved by the following certificate : " Ratified at Turkey-town by the whole Cherokee nation in council assembled. In testimony whereof, the subscribing commissioners of the United States, and the undersigned chiefs and warriors of the Cherokee nation, have hereto set their hands and seals, this fourth day of October, in the year of our Lord ono thousand eight hundred and sixteen." . ..„.,„_„ ^ Signed, ANDREW JACKSON, D. MERIWETHER, and nine Cherokee chiefs, in the presence of the venerable Col. Meigs, two interpre- ters, and Major Gadsden of the United States army, who subscribed as witness**. The treaty was ratified by Tresident Madison and the Senate. 4i I close this number by requesting all our public nrjcn to meditate upon the following words of a very snirficious king : — Remove not the old landmark; a'i.'-'i i^o', inio mc fields of the fathtrleaa ; that is, of the weak and i ?>' . ' • >88 ; for their Redeemer is mighty ; He shall plead their cauat ..tce. \\ •A No. XII. Treaty of the Cherokno Agnncy, or fifteenth compact, ini7— Title of the treaty —Long and curioui preamhio— Abstract of the treaty— Ucmarks upon it— Sin- gular arrangement of Providence — Consideration of Mr. Joffeison's letter — The United State* to be bound by fear alone— The Chorokees relied on these pro- mises. The next treaty is unique in its character ; but all its provisions are in accordance with the principles of preceding compacts. It forcibly illustrates the change, in the condition and prospects of the Cherokees, which had then commenced, and has been constantly increasing. TREATY OF THE CHEROKEE AGENCY, OR FIFTEENTH COMPACT WITH THE CHEROKEES. TITLE. " Articles of a treaty concluded at the Cherokee Agency within the Cherokee nation between major general Andrew Jackson, Joseph McMinn, governor of the State of Tennessee, and general David Meriwether, commissioners plenipotentiary of the United States of America of the one part, and the chiefs, head mei^and warriors of the Cherokee nation, east of the Mississippi river, and the chiefs, head men, and warriors of the Cherokees on the Arkansas river, and their deputies, John D. Chisholm n James Rodgers, duly authorized by the chiefs of the Che- rokees on the Arkansas river, in open council, by written power of attorney, duly signed and executed in presence of Joseph Sevier and William Ware." Here surely are parties, commissioners, and agents enough to make a treaty ; but the preamble, occupying an octavo page and a half, is still more remarkable. It declares, that in the year 1808, a deputation from the Upper and Lower Cherokee towns went to Wasliington : that the deputies from the Upper Towns signified to the President " their anxious desire to engage in the pursuit of agriculture and civilized life, in the country they then occupied ;" that the nation at large did not par- take of this desire ; that the upper towns wished, therefore, for a division of the country, r.nd the assignment to them of the lands on the Hiwas- see ; that, " by thus contracting their society within narrow limits, they proposed to begin the establishment affixed laws, and a regular govern- ment ; that the deputies from the .lower towns wished to pursue the hunter life, and with this view to remove across the Mississippi ; that the President of the United States, " after maturely considering the petitions of both parties," wrote to them on the 9th of January, 1809, as fol- lows : " The United States, my children, are the friends of both par- ties ; and, as far as can be reasonably asked, they are willing fo satisfy the wishes of both. Those who remain may be assured of ou. ,>atron- age, our aid, and good neighbourhood. Those who wish to remove, are permitted to send an exploring party to reconnoitre," Ate. That in the itate upon ot the old that 13, of He shall »f the treaty pon it — Sin- lotter— The in these pro- visions are It forcibly Cherokeea, COMPACT he Cherokee vernor of the snipotcntiary ad meq, and g chief*, head eir deputies, I of the Che- ttorney, duly e." gh to make id a half, is I deputation igton : that lent " tlieir ivilized life, [lid not par- )r a division the Hiwas- limits, they ular govern- ) pursue the tpi ; that the the petitions 1809, asfol- f both par- n^r in satisfy ou, ^>atron' remove, are That in the 4ft same letter, the President added—" When the parly slinll have found a tract of country suiting the emigrants, and not claimed by other Indians, we will arrange with them and you the exchange of that for a just por- tion of the country they leave, and to a part of which, proportioned to their numbers, they have a right;" and that in conclusion, ho told the emigrating Cherokces, that the United States would "still onaider them as our children," and " always hold themfrmly by the hand.'' The preamble states further, that, " the Cherokecs relying on the promises of the President of the United States, as above recited," ex- plored the country west of the Mississippi, made choice of land to which no other Indians had a just claim, and were desirous of completing the proposed exchange of country. " Now, know ye," concludes the preamble, " that the contractuiff par- ties, to carry into full effect the before recited promises with good faith, and to promote a continuation of friendship," dte. &,c. " have agreed and concluded on the following articles :" Art. 1. " The chiefs, head men, and warriors, of the whol's Cherokee nation, cede to the United States all the lands lying north and east of the following boundaries:" [The line here described left out a tract of land, which fell into Art. 2. The Chcrokees also cede certain valuable lands, which fall into the central parts of Tennessee. Art. 3. A census to be taken with a view to ascertain the number of emigrants ; that is, the number of Cherokecs who wish to remove across the Mississippi. Art. 4. The annuities to be divided between the remaining and the emigrating Cherokees, in proportion to their numbers respectively. Art. 5. In consideration of the lands ceded in the first and second articles of this treaty, the United States engage to give an equal quantity of land, acre for acre, between the Arkansas and White rivers, within certain boundaries mentioned. This article closes with the following words: " And it is further stipulated, that thf reaties heretofore between the Cherokee nation and the United States are to continue in full force with both parts of the nation ; and both parts thereof are on- titled to all the immunities and privileges which the old nation enjoyed, under the aforesaid Ueatios; the United States reserving the right of establishing factories, a military post, and roads within the boundaries above defined." Art. 6. The United States to make full compensation for the improvements on land within the Cherokee nation, which shall have belonged ti the emigrating Cherokees, and to furnish flat- bottomed boaUand provisions for their removal. Art. 7. Improvements on land ceded to tiie United States, to bo paid for bj the United States. There is a provision, also, in this article, that the profit of the improvements mentioned in article 6th, shall be applied to the benefit of poor and decrepid Cherokees. Art. 8. To every head of an Indian family, residing on tho lands ceded by the Cherokees in this treaty, shall be allowed a section of land, that is 640 acres, pro- vided ne wishes to remain on his land thus ceded, and to become a citizen of tho United States. He shall hold a life estate, with a right of dower to his widow, and shall leave tho land in fee simple to his children. Art. 9. Both parties to' enjoy a free navigation of rivers. Art. 10. The Cherokee nation cedes to the United States, certain small reserv- ations, without the present limits of the nation. Art. 11. The boundary lines to be marked. Art. 12. No whites to enter upon the lands ceded, till the treaty " shall bo rati- fied by the President and Senate of the United States, and duly promulgated." Art. 13. The treaty to be in force as soon as thus ratified. The Treaty was signed on the 8th of July, 1817, by .\ndrew Jackson, and the other commissioners, and by thirty-one chiefs and warriors for the Cherokees, who expected to remain east of the Mississippi, and fifteen chiefs and warriors for the emigrating Cherokees, in the presence of nine witnesses. It was ratified by President Monroe and the Senate. 46 It would seem as though the public affairs of the Cherokces had been ■o ordered by Providence, as to present the very strongest conceivable exiiibition of the obligation of treaties. It has usually been thought, that if a single plain stipulation were made between two nations, and duly ratified, this would bind the parties. I am now examining the fif- teenth treaty with the Cherokees, every one of which is perfectly consis- tent with every other ; and they all unite in leading to the same conclu- sion. As if this were not sufficient, the individual character and politi- cal consistency of uar most prominent statesmen, not only lend their aid to confirm these national compacU ; but are actually personified, as it were, and embodied in the treaties. It may be doubted whether there is a similar instance in the annals of mankind. General Washington, soon after the organization of our national go- vernment, laid the basis of our Indian relations, in perfect consistency with the principles and practice of the early settlers and colonial rulers. Mr. Jefferson was a member of his cabinet, and doubtless intimately conversant with these fundamental measures. The five first Presidenla of the United States made treaties with the Cherokees, all resting on the same acknowledged principles. Mr. Jefferson, the third President, having pursued the policy of General Washington on this subject, with more undeviating zeal than on any other subject whatever— being about to retire from the chief magistracy— and standing mid-way between the era of 1789 and the present year, wrote a fatherly letter to the Chero- kees, giving them his last political advice. This letter is preserved by them in their archives. A negotiation is held with them, on their own soil, or, as the title has it, " within the Cherokee nation," under the di- rection of the fifth Presi.lent of the United States. The letter of Mr. Jefferson is produced and incorporated into a treaty. It is therefore adopted by the people of our land, and approved as among the national munimenU, erected for the defence of our weak neighbours. What adds to the singularity of the transaction, is, that this letter, reaching backward and forward through five administrations, is adopted in the fifth, by a negotiator, who is now the seventh President of the United States ; thus bringing all the weight of personal character and political consistency to support as plain stipulatioin, as can be found in the Eng- lish language, or any other. May it not be said, then, that the case of the Cherokees has been prepared by Providence, that we may show to ourselves and to the world, whether engagements can bind us ; or whe- ther the imagined present interest of a small portion of the American people will transform itself into a Samson, and break national treaties by dozens, and by scores, " a* a thread of tow is broken when it touch- eth the fire r , ^^ , If this case should unhappily be decided against the Cherokees, (which may Heaven avert !) it will be necessary that foreign nations should bo well aware, that the People of the United States are ready to take the ground of fulfilling their contracts so long only, as they can be overawed by physical force ; that we as a nation, are ready to avow, that we can bo restrained from injustice by fear alone ; not the fear of God, which is a most ennobling and purifying principle ; not the fear of sacrificing national character, in the estimation of good and wise men in every country, and through all future time ; not the fear of present » 47 !8 had been :onceivable in thought, lations, and ling the fif- ictly consia- ,me conclu- ■ and politi- iid their aid nified, as it lether there national go- consistency jnial rulers. I intimately t Presidents I resting on i President, ubject, with •being about between the the Chero- ireserved by )n their own mder the di- etter of Mr. is therefore the national jurs. What er, reaching opted in the f the United and political I in the Eng- t the case of may show to us ; or whe- le American ional treaties chen it totich- i Cherokees, reign nations are ready to 3 they can be ady to avow, ot the fear of ot the fear of I wise men in ir of present shame and public scorn ; but simply, and only, the fear of bayonets and cannon. But what duo!4 the letter of .Mr. Jeflbrson, thus ailopted and sanction- ed, and made the moiitli-piece of the nation ; what does this letter, written aAcr much deliberation and much experience, and on the eve of quilting public life, say to the Cherokees? It says, that the United States will always regard both branches of the Cherokee nation as their children. (A good father, 1 suppose, does not tell lies to his children, nor break his promises to them ; especially promises that have been often repeated during the lapse of many years, and in which they have confided in making all their arranj,'emcnts for comfort and usefulness through life.) It says that the < heroknes of the Arkansas must not enter upon lands claimed hy other Indlatu, thus admitting that the wild- est savages have a claim to lands. It says, that all the individuals of the Cherokee nation hate a right to their country; and, therefore, if a part of the nation surrenders to the United States its right to lands east of the Mississippi, it must receive from the United States a right to lands west of that river. It says, that those Cherokees, who choose to re- move, may emigrate with the good wishes and assistance of the United Slates, and that those who remain, may be assured, (yes, assured is the word of Mr. Jefferson, adopted by General Jackson,) " may be assured of our patronage, our aid and good neighbourhood." It would be dif- ncuU to make any comments upon this passage, which would add to the impression which it cannot fail to make upon every fair and honourable mind. The preamble says, that the Cherokees relied upon the promises of the President of the United States, and took their measures accord- ingly. Why should they not rely upon his promises ? No President of the United States bad broken faith with the Indians. But if these very promises, and a tiiousand others, should now be broken, there will be an end of reliance on our promises ; and out of tenderness to my country, and that wo might not be unnecessarily reminded of the infamy thus laid up in store for future generations, I could heartily wish, that none of our public functionaries may ever hereafter make a pro- mise to an Indian. No. XIII. Fourth treaty of Waahington, or sixteenth and last compact, 1819 — Abitraet of the treaty — Recognition of industrious Cherokees — Permanent school fund for Indians east of Uie Mississipi — Incorporation of the Intercourse Law into the treaty — Provisions of that law — Incidental recognition of the rights of In- dians by the Supreme Court of the United States. There is but a single treaty more in this long chain of negotiations. It was executed on the 27th of Februrary, 1819, by John C. Calhouii, then Secretary of War, for the United States, and by twelve Cherokee Commissioners. It may he called THE FOURTH TREATY OF WASHLNGTON ; OR THE SIXTEENTH AND LAST NATIO.NAL COMPACT BETWEEN THE UNITED STATES AND THE CHEROKEES. The preamble states, that " the greater part of the Cherokee nation have ex- 48 nrcMed an ttniMt iimin io remain on Ihta lids of Uia MiMiwippi," and thai they wmh "to cominonce ll.o*e m«a«uro. whirh t!iey deesn necMstry to the ^'»'';"''"" and prewrvatio,, of their n»t.on •." they therefor, offer to cede »» t>r» l^"'»«j Statei a tract of country at lea*t aa extenii»e a* the United Slatee will be entitled to. according to the proviiioni of the preceding treaty. „ .. , . ,. Aar. 1. The C:herokee nation cede, to the United State, all it. land., lying north and ea.tof the following line ; f IJy thi. houndary con.iderable tract, of land were ceded, which fell under the jurimliction of Alabama, Tennewee, and Georgia. There wa. a re«>rvation of about ia),000 acre., lying without the new boundary, for a «:hool-fund for the Cherokee..] ... .u a i.._ The ceMion in thi. article to be in full .ati.faction for the land, on the Arkan- la., Kiven by the United State in the next preceding Ueaty. ..„;.„.. . Aar 2 The United State, to pay for impruvemenU on the ceded territory j and to allow a re.ervation of 6U) acre, to each head of a family, who wuhe. to remain, and become a citiien of the Unitod State.. Aar^a A re.ervation of 640 acre, to each of 31 p«r«)n. mentioned by name, «all of whom are believed to be perMn. of indu.try, and capable of managing their property with diacrction." i. ^e .:„ut „t\,., nmr There were al.o eight other rewrTaUon. of 640 acre, to each of eight other per- '" A,t'"'4^The'''land reaerved for a echool fund to b« .old. in the .ame manner as the public land, of the United State., and the proceed. »e.ted by the I're.ident of the Unitod State, the annual income to be applied "to diffi-ao the benefit, of ed- ucation among the Cherokee nalionon tkis tide of the Miuunppt. Aar 5. Boundarie. to be run a. pre«:ribed in former troatie.. Int"'*"" ^°™ the whito .ettlement. to be removod by the United State., and proceeded aga.n.t aceording to a law of Congrew which wa. enacted March JO, \Wi. Aar. 6. Two third, of the annuilie. .hall hereafter be paid to the Cherokee, on the eaat, and one third to thow on the we.t of the Mwi.iippi. A«T. 7. The ciUien. of the Unitod State, not to entor upon the ceded land., before Jan. 1, 1020. Aa r. 8. Thi. treaty to be binding when ratified. The treaty waa ratified by Pre.ident Munroe and the Senate. The preamble of this last treaty declared, that the Cherokees, as a body, wished to remain upon their ancient territory, with a v,ew to their national preservation. The treaty was therefore avowedly made w.h the same view. This is perfectly manifest from the words of the docu- ■ ment ; and I feel warranted in saying, that the Cherokee chiefs, (who consented to the cessions of the first article with great reluctance,) were positivei' and solemnly assured, that the government of the United States did not intend to ask them to sell any more .and. 1 his is im- plied, indeed, in the preamble, which, after recognizing »he desire of the Cherokees to remain and become civilized, adds, in effect, that the cession now made was so extensive, as not to require any future cession. To about forty individuals specific reservations were made by the third article, on the alleged ground, that these individuals were per- ,ofu of industry, capable of managing their property ^^^.f'^f'^'.. A very small portion of the Cherokee population resided tipon the land ceded ; yet from this small portion, (excluding, also, those wh° wished to ei^^igrate from the ceded district to the Arkansas,) about forty heads of families werind for a specific object ; and that object implies the permanent existence of the Cherokee nation eastward of the Mississippi. But the provision of the fiflh article is still more important to the Cherokees. It would socni as if every contrivance was used, which human ingenuity could devise, for the purpose of binding the faith and constancy of the United States to a just and honorable course with the Indians. The integrity of their territory had been guaranteed by treaty. Rigorous laws had been enacted for the punishment of intrutiers. These laws had been executed. But the time might come when the laws would be repealed ; and when Congress would, by a feeble system of legislation, leave the Cherokees defenceless. In order to guard against this species of bad faith, a stipulation is here inserted, by which a certain law of the United States, so far as it relates to the intrusion of whites upon Indian lands, is made a part of the treaty. Thia law, therefore, as it respects the Chernkeed, cannot be repealed by Congress. It is to be considered in just the same light, as if all those parts of it, which relate to intruders, had been literally copied into the treaty. Let us then look at some of its provisions. By the law of March 30, 1802, it is enacts, (section 2,) that if* any citizen of the United States shall cross over, or go within, the boundary line, between the United States and the Indiana, to hunt, or in any wise destroy the game ; or shall drive horses, or ca tie, to range on any lands allotted or secured, by treaty witii the United States, to any Indian tribes, be shall forfeit a sum not exceeding j^ 100, or be imprisoned not exceeding six months.' By section 6th, it is enasted, ' that if any citizen shall make a set- tlement on any lands belonging, or securetl, or granted, by treaty with the United States, to any Indian tribe, or shall survey, or attempt to tttnep, such lands, or designate any of the boundaries ly marking trou, or otherwise, such offender shall forfeit a sum not exceeding ^1,000, and suffer imprisonment not exceeding t>.slve montlia.' In the same sec- tion, the President is armed with full power tn take such measures, and to employ such military force, as he shall judge necessary to remove from Indian lands any person who should " attend to make a settiewtent thereon." There are other provisions in the act, all tending to the protection of the Indians, and to the preservation of their territory ioviolate. Thia general Uw is now in force, in regard to all the Indians, whoM landi 7 i IT 4i t ao •r« tecured to them by treaty ; and in regard to the Cherokee, let in« My B((iin, Cohgreai cannot repeal it ; Ibr il i* incorporataU into a solemn national compact, which cannot bo altered, or annulled, without tbo consent of both parties. Within a few months pait, ii train of survcyori, profewing to act under th« nulhority of Georgia, have made an irruption into the Chero- Jiee nation, to tho great anno)«nco and alarm of the peaceable inhabi- tknta. These agents of Georsia havo not only attempted tc survey, but havo actually surveyed, what they call an old ('reck boundary, which they havo doubtless deiignnteil by marking trees, and otherwise. Thus havo they done the very thins,' which is forbidden by the 6th «ec- tion above quoted, under a pcnulty of jj 1,000 and twelve months' im- prisonment. , y^ , , 1 Even if the people of Georgia were right, as to the Creek boundary, they are not the pro|)er persons lo v.^ccrtiin the fact. fJoveral treatiea between the United States and the Chorrkcest provide, tli;»t boundaries ■hall bo oscertained by comntiasionerM appointed by the United Stales, accompanied by commiHsiuncrs appointed by the Cherokee nation. Can any good reason be assigned, then, why the President should not direct a prosecution to be commenced a(.':iinst these otFenders, who have trampled on' a law, which is of vital importance to sustain the plighted faith of the nation ? It is said that the United States can make no treaty with Indians living within the limits of a State ; that is, within the limits of what op- pcars, by the map, to be one of the United States. I beg leave to make A distinction between a State, and the map of a State ; not having yet seen it proved, that the engraver of a map has the power of disinherit- ing a whole people, and delivering their property into the hands of others. What did the men, who formed the federal constitution, think of the extent of the treaty-making power ? This appears to me to be a pertinent question. It is certainly a question, to which a decisive answer can bo given. In the first law of Congress, on the subject of intercourse with the Indians, which was enacted under our present form of government, the fourth section reads as follows : "That no mU of lands made by any Indians, or any nation or tribe of Indians, within the United States, •hall be valid lo any person or persons, or lo any Stale, whether having the right of preemption to such lands or not, unless the wnie aha^l be made and duly executed at $ome public tnaty, held under the authority of ihe United S/ak boundary, 'eial treaties t bouiulurics iiiited States, okce nation. i)t should not Fenders, who to sustain the with Indium s of wliat op- cave to make ot having yet of disinherit- the hands of titution, think s to me to be lich a decisive the subject of r our present tribe of Indians, , or to any Stale, ii the lanie ihall authority of ihe lays before the rk, which was B of Congress ed the federal not be contro- ecision, in the well be ima- !Dt laws, and is ther conveyance, on, or tribe of In- Jidity, in law or into puraosnt to the eonetitutien : kni \\ ■fiatt W a miidtmeanor In any ptrtoa, not implaye^ lui. «l*r tiia aiilhority of the i'nited Ststss, lo nrifufiiit* •iitli tretty or nonverjtion, dU reetiy oi indirectly lo treat with any iuoli Indun nation, or tribe of Indian". Tortli* title or purcliaie of an/ landa by llmm held or claimed, puniihable by finn, not ei- eeeding one thouiand dolUra, and inipriaonniont, not etcetiding twelve iMonlhi." Then follow! a pro»i»o, that an agent from a State may bo prct«nt,aitd propoae Urms, when coirimiMionere of the United Mtatee are treating with the Indiana. In accordance with the constitution, and with the express provisions of these national laws, it has b«;en the universal practice to obtain cet- ■ions of Indian lands through the medium of trcaticM, made under th« •uthority of the (United Stati's. No fewer than nine of these treaties have been dulv formed and ratified, in rcL'nrd to small reservations of Indian territory, in the single State of Now York. That great and powerful State has never yet complained that its rights, " as a sovereign ■nd independent State," are in any way endnn>rered or abridged, by a faithful adherence to the letter and spirit of the federal constitution. Thus, Messrs. Editors, I have gone through the long list of treatiei which our country has made with the Cherokeea, and which have re- ceived the highest sanction of the legislative and executive branchea of our government ; and which, no «loul)t, will receive the sanction of the judiciary, whenever regularly brought before it. The Judges of th« Supreme Court of the United States long since declared, incidentally, that the United States are bound by treaties to the Indians. Mr. Jus- tice Johnson said, nineteen years ago, (6 Cranch, p. 147,) "innumera- ble treaties 'ormed with them, [the Indian?,] acknowledge them to be an independent people ; and the uniform practice of acknowledging their right of soil, and restraining all persons from encroaching upon their territory, makes it unne'^cssary to insist upon their right of soil." Chief Justice Marshall said, that the Indian title " is certainly to be respected by all courts, until it be legitimately extinguished" This is enough for the perfect defence of the Cherokces, till they voluntarily surrender their coyntry ; such an act on their part being the only way in which their title can be legitimately extinguished, so long as treaties are the supreme law of the land. No. XIV. Apology for thie prolonged discussion— The people of the United SUtes are jury- men in the caee, and muit hear it— The Cherokoes have rcfuied to treat for ten yeare— Scruples of Georgia about the treaty naking power— Perfect con- aiitency of treatioe- No evidcnoo to tlio contrary— Laws, treaUca, common sense, justice, ail on the side of tlio Chorokecs. It is well known, Messrs. Editors, thaUa long series of numbers, oa a single subject, is not apt to be read ; especially if it be of the nature of a legal or diplomatic discussion. On this account, I have felt many misgivings, in calling upon the public to follow me from one stage to another of the negotiations with the Cherokees ; but I have been ad- vised, that no part of the preceding numbers could be omitted without injury to the cause. If I were arguing this question before the Su- prenM Court of the United States, simple references would be iuffi- i 4 oient in many cases, where I have felt it necessary to make quotations. Yet I think any candid lawyer will admit, that, if he were pleading the cause of the Indians before the highest tribunal in our country, he would be constrained, by faithfulness to his clients, to dwell much longer upon some topics than I have done. Let it be remembered, that those mem- bera of the American community, who may be justly denominated honest and intelligent, are to decide this question ; or at least, that they may decide it properly, if they will take the trouble to understand it, and will distinctly and loudly express their opinion "?»"»». And here let me humbly intreat the good people of the United States to Uke this trouble upon themselves, and not to think it on unreasona- ble task. Let every intelligent reader consider himself a juryman in the case ; and let him resolve to bring in such a verdict, as he can hereafter regard with complacency. It is not a single man, who is on trial, and who may lose his life by the carelessness of the jury. Sixty thousand men, women, and children, in one part of the United States, are now in constant expectation of being driven away from their country, in such a manner as they apprehend will result in their present misery and speedy extermination :— sixty thousand human beings, to whom the faith of the United States has been pledged in the most solemn manner, to be driven away— and yet is it possible that the people of the United States should be unwilling to hear their story, or even to require silence till their story can be heard ? , , . I am encouraged, Messrs. Editors, to proceed, by the assurance, which has reached me from different quarters, that our community is not callous to every feeling of justice and honor, in relation to the In- dians ; that there is a greater disposition to inquire on this- subject, Uian on any other now before the public ; and that even my numbers, defi- cient as they are in vivacity, are extensively read with that interest, which Ihe magnitude of the cause, in all its bearings, may well excite. A few remarks upon the treaties with the Cherokees may not be use- less. . , It is a natural inquiry. Have there been any attempts to treat with this nation, since the year 1019? There have been many; and al- though the politicians of Georgia now think that the United States have no power to make treaties with the Indians, it is not more than one or two years since they were urging Ccngress to make appropriations for this object, and pressing the executive, to procure the Cherokee country by negotiation. In regard to this matter, they have been extremely im- portunate. Mr. Monroe was teased by them during his whole presi- dency. Their scruples, as to the extent of the treaty-making power, are of quite recent origin ; and it is supposed, that they would not ve- hemently remonstrate, if a treaty should now be made, the terms of which should compel the Cherokees to lake up their residence under the shade of the Rocky Mountains. The scruples about the treaty-mak- ing power seem not to have existed, till after the Cherokees refused to • treat any more. When chiefs and people had thus refused, at home and abroad, in their own territory and at Washington ;— When they had declared in writing, that there was not money enough in our na- tional treasury to purchase an additional foot of Cherokee land ; and when thasa declarations were made with a determination and coniUncy, ■*.5^ -«— >t^.^^-£.«?t->«»*'«.***-*«*««4tat-i*t». A3 ike quotations, re pleading the nlry, be would ch longer upon ^at those mem- y denominated least, that they } understand it, it. e United States an unreasona- L juryman in the le can hereafter is on trial, and Sixty thousand ites, aru now in untry, in such a sery and speedy I the faith of the ler, to be driven ed States should :e till their story the assurance, ir community is lation to the In- his* subject, tlian y numbers, defi- it interest, which ill excite, may not be use- >t8 to treat with many ; and al- nitcd States have nore than one or ppropriations for i^herokee country en extremely im- his whole presi- y-making power, ley would not ve- ide, the terms of residence under It the treaty-mak- rokees refused to refused, at home on; — When they ough in our na- srokee land ; and on and constaoey* which left no hope of forming a treaty ; — then it was discovered, that th« government of the United States possessed no power to muke a treaty. There is a provision in the treaty of Hopewell, (the Hrst treaty in the long series,) similar to the proposal mads to the Delawares ; viz. ' That the Cherokecs may send a deputy of their choice to Congress.' On this provision I omitted to make a remark, in the proper pluce, which may be introduced here. Though the treaty of Hopewell was formed under the old confederation, it is not the less binding on that account ; and good faith would now require, that the Cberokees should be allow- ed a privilege, as nearly as possible tantamount to what would have been the privilege of sending a deputy to the Old Congress.'' Here then we have sixteen treaties with the Clierokees, negotiated from 1785 to 1819, ratified by five presidents, all resting on the same principles,— all consistent with each other, — and all now in force, ex- cept that some parts may have become obsolete by subsequent stipula- tions on the same subjects. The earlier treaties are repeatedly and solemnly recognized by later ones. An ofhcial letter of Mr. JeiTerson is curiously wrought into a treaty, so as to form a connecting bond to the whole system. In the last treaty of all, negotiated by the present Vice President of the United States, a law of Cr>ngress is introduced for the permanent defence of the Cherokees. If we look into other treaties with Indians, from the Delaware treaty of 1778, (from which a quotation was made in my ninth number,) to the Creek treaty of 1826, the same inviolable territory, the same solemn guaranty, the same proffer of friendship and good neighbourhood, will every where be found. So many treaties had been formed with Indians previously to 1810, that Mr. Justice Johnson pronounced them "innu- merable." In none of these treaties is the original title of the Indiana declared to be defective. In noae of them is it said, that Indians have not the power of self-government ; or that they must come under the government of the several States. In no case, have the Indians signed away their inheritance, or compromitted their independence. They have never admitted themaeives to be tenants at will, or tenants for years. Upon the parchnoent all stands fair ; and, so far as their present engage- ments extend, they are under no more obligation to leave their country, than are the inhabitants of Switzerland, to leave their native moun- tains. What is the evidence brought against this mighty mass of treaties ? Nothing ; absolutely nothing. The Secretary of War merely says, that the Cherokees were permitUd to remain on the lands of Georgia. But where is his authority ? If we turn from treaties to the laws of the United States, we find the whole system of legislation mado in exact accordance with the treaties. Nearly all these compacts requ red ipproi^tiations of money. When the appropriations were made, the trt .'tties came of course under the view of both houses of Congress ; and every such appropriation was of course an assent of Congress to the treaty. Besides, some of the most important articles of treaties, were taken from previously existing laws of Congress. Thus, tlie 1 1th article of * Some other lomarks, on the treaty of Hopewell, are anticipated in the third number, m publiahed in thii pamphlet, p. 13, and mie therefore omitted here. urn'- IT i tlia tiMty of Holston, U taken from the treaty made witli the Creeks at New York, August 7, 1790, where it was inserted verbatim from "an act to regulate Irade and intercourse wilh the Indian tribes," which waa approved by President Washington, oidy sixteen days before. Thia discovery I have just made, and consider it as decisive evidence, that the treaty wilh the Creeks was a measure of great deliberation, and that the eminent men of that day laboured to make every part of their politi- cal system harmonize with every other part. If we leave both laws and treaties, and look at the conduct of our government toward the Indians, we find the decliM-ations of Indian agents to have been always directed to this one point: viz. to satisfy the In- dians, that the government would deal justly and faithfully by them, — would perform all its engagements, — and would secure to them the per- manent possession of their country. They were constan'Vv urged to become farmers, to educate their children, aiid form a regular govern- ment for themselves ; and all this, avowedly, with a view to their per- manent residence. This was done by General Washington — by Mr. Jefferson, by Mr. Madison, by Mr. Monroe, as can be shown from published documents ; and probably by the elder Adams nnd his son. To treaties, laws, usage, — every public and every private pledge,-— are to be added the dictates of »-cason and common sense, and the prin- ciples of immutable justice. All these stand on the side of the Chero- keos. Still Georgia demands all the land, which lies within what are called her chartered limits. The nature of this demand will be examined hereafter. No. XV. Complainti of Georgia— The qneition between Georgia and the Cherokeei, if no other party wore concerned— Claim* on the ground of civiliiation— Aniwer of the Cherokeee— Replication of Georgia— Doctrine of Vattei— It docs not apply to thia ca«e— Valtere opinion of the Puritans and Penn— The Cherokee* not nndcr the jurisdiction of Georgia- It has appeared, in the preceding discussion, that the United Slates have entered into solemn engagements with the Cherokees, by which we are bound, as a people, to defend their title and their sovereignty, and to protect them from every species of encroachments and aggres- sion. If this be not the obvious meaning of numerous and "PJ®" ctipulations, it will bo impossible to frame articles in the English lan- guage, whic!< shall express any meaning whatever. But Georgia complains that the government of the United Slates transcended its powers in making these engagements, which are there- fore to be considered null and void. The reader must bear in mmd, that this complaint of Georgia is not of long standing. Indeed, I ain hot certain that the legislature has expressed it ; but the leading men of that State, and some of the newspapers, are loud in making and repeat- ing it. Till very recently, as was mentioned in my last, the authorities of Georgia have been urging the United States to make treaties with the Indians. , - ..- ii,^\.-iii>.m's^ ^i?-'*^->«»Ww^^w— ^'' M the Creeks ftt Hm from *' an is," which was before. Thia evidence, that ation, and that of their pohti- onduct of our f Indian agents satisfy the lo- lly by them, — > them the per- ai\'\y urged to eguiar govem- t to their per- igton — by Mr. & shown from nnd his son. vme pledge, — I, and the prin- of the Chero- rithin what are ill be examined iCherokeei, ifno ition — Answer of It docs not apply le CberokeM not ) United States kees, by which ir sovereignty, ts and aggres- 19 and express e English Ian- United States hich are there- bear in mind, Indeed, I am leading men of ing and repeat- the authorities Le treaties with In order to come to a AilI uniientandinfr oC this case, in all its bear- ings, let ua in(iufre how the controversy wouM present itaelf, if the old thirteen States, after obtaining their inde|>enrizbd to conquer bring them into rears afterwards, 1 a proclamation, ans of this conti- m either of these ssod to act upon 9 a general thing, , the privilege of vards got posses- of what they con- 3 were instigated, ;ues of European IS a body, and for practice, the doc- nds because they e more powerful of legislators, an- ;iple, that, in this I which was made ns of the present of British kings, led in them, could 36 of Fletcher vs. lU the parts which The first charter sixty three years lich lies between of country more from the Atlantic tber witb all port8» harbors, bs' s rivers, soil, land, fields, woods, lakes, and other righU aid privileges therein named." So far as appears, the charter said nothmg of the native inhabitants. Whether it sdiil any thing in regard to them, or not, ia immaterial to the case now in hand : for as k nave already observed, nn man will undertake to maintain the proposition, that the unknown tribes and nations between the Atlantic and the Mississippi, and thence westward to Mexico and the Pacific, could have their righte and properly justly taken from them by the signature of the British king, in his palace of Whitehall. . « •.• u The rights derived from this charter were surrendered to the British crown in the year 1729. Tliree years afterwards, George the Second incorporated James Oglethorpe and others, as a charitable society, which he styled " The Trustees for establishing the Colony of Georgia, in America, with perpetual succession." To this corporation he grant- ed all lands lying between the rivers Savannah and Altamaha, and be- tween parallel lines, drawn westward to the Pacific, from the heads of said rivers respectively, " with all the soils, grounds, havens, bays, mines, minerals, woods, rivers, waters, fishings, jurisdictions, franchises, privileges, and preeminences, within the said territories." In the year J 752, this charter also was surrendered to the crown. A royal government was instituted in 1764, over the colony of Georgia, which was bounded in the same manner as the tract granted to the cor- poration above described. This tract embraced all the northern part of the present states of Georgia, Alabama, and Mississippi, and extend- ed westward to the South Seas, as the Pacific Ocean was then called. By the peace of 1763, it was agreed between England and Spain, that the Mississippi should be the western boundary of the British col- onies The same year a proclamation was issued by George the Third, which, among other things, annexed to the colony of Georgia, what w BOW the BoutbefB part of the states of Georgia, Alabama, and Missii- nppi. The same proclamation contains the following passage : M That it ii onr royal will and pleaiure for th* pruent, bs afore»aid, to rejierT* under our iovereigBty, protection, and dominion, for the use of the •aid Indiane, aU the land and territoriee not included within the limiU of our eaid three new go- vemmenti, or within the limit, of the territory granted to the Hudjon • Bay Com- VEnr, at aUo all the land and territontt lying to the westward ofthetoureei o/int Wwr«, whUh fall into the tea from the vett and northxeett at a/orMoirf ; and we do hereby itrictly forbid, on p»in of our di»p]ea«ure, all our loving eubjccU from ma- kinir tnv purchwee or eetilemcnU whatever, or taking posieBwon of any of the lands above rewirved, without our special leave and license for that purpose first obtained." The lands now in dispute between Georgia and the Cherokees era within the description, which is printed in italics ; and were therefore reserved ''for the uie of the Indiam." Thus matters remained, so far as the British government was concerned, till the close of tlie revolu- tionary war. By the peace of 1703, the colony of Georgia was ac- knowledged to le one of the independent states of America. There can be no doubt, that the state of Georgia thenceforward might exer- cise, within her proper limits, all that authority, in regard to the In- dians, or any other subject, which either the colony of Georgia, or the k" II. !'■ 60 Britith goTernaitnt might h*fe rightAiUy exercised within the wme limit!. It is to be undentood, however, that any modifications of her power, which Georgia afterwards made, either by entering into the old confederation, or by adopting the present national constitution, are to be duly regarded. There are no means within my reach, by which the claims of the British government, in regard to the possessions of the Indians, can be accurately known. Nor is it of any consequence that they should be known. Unless they were founded in reason and justice, they could be of no validity ; and in regard to what i» founded in reason and justice, impartial, disinterested, intelligent men of the present day, can form as correct an opinion, as could Im formed by the kings of £ngland. It is admitted on all hands, and is even sirenuously contenfled for by the people of Georgia, that the Indians wore considered by the British crown, as under its protection. From this claim of the crown, it is inferred, that the Indians held their lands by permitsion of the crown. Now I humbly co'^'^eive, that here is too large a leap from th« piKmises to the conch.jion. There is a distinction between afford- ing protection and usurping unlimited control over rights and property. How manv small states remained for hundreds of years under the pro- tection of' the Roman Republic ? The greatest men in that republic were always proud of their good faith to their dependent allies, so long M these allies remained faithful. The right of retaining their territory, laws, customs, and habits of living was not invaded. How many small states are there in Europe, at this moment, possessing a limited sove- reignty, and remaining under the protection of larger states, yet exer- cising the right of administering their own government, in regard to many essential things, as truly as the state of Massschusetts, or South Carolina, administers ita own government ? Would it not be safer to infer, that the Indians were claimed to be under the protection of Great Britain because they had important rights, which needed protection? rights which were in danger fom the encroachments of other European nations, the avarice and ;.aud of speculators, and the hostile machinations of neighbouring tribes ? A guardian is the acknowledged protector of his ward. Is it sound law, therefore, that the guardian is the sole owner of his ward's property ; and may set the helpless orphan adrift in the world ? The father is the protector of his children : may he, therefore, oppress them, dis- hearten them, and thus prepare them to become outcasts and vaga- bonds ? A husband is the protector of his wife : may he, therefore, abuse her, repudiate her without cause, and drive her from her own bouse and her patrimonial inheritance ? The people of the United States may conclude, therefore, without the least danger of mistake, that the rights of the Cherokees and Creeks were not taken from them by a royal proclamation. The thing is im- possible in itself ; and the proclamation does not assert, nor imply, that the righto of the Indiana were to be disregarded. m thin the s»tne ications of her n^ into the old titution, are to claims of the Indians, can be they should be ', they could be on and justice, y, can form as Ingland. contended for sidered by the n of the crown, rmitnon of the ^e a leap from between afford- s and property. under the pro- n that republic It allies, so long I their territory, low many small a limited sove- tates, yet excr- it, in regard to uaetts, or South e claimed to be had important in danger f'om arice and ;.aud iring tribes ? A Is it sound law, vard's property ; ? The father is press them, dis- tcasts and vaga- ly he, therefore, r from her own lerefore, without kees and Creeks The thing is im- t, nor imply, that No. xvir. ControTcniei about unappropriated landi — Indian title alwayi reapected— Firit inlercourae of Ogletliorpe with Indiani, 1733 — Treaty of Havannah — Abitract of it — Ratified in London — Treaties writtrn by the Engliah — Viait and wpeech of Tomochichi — Reply of George II. — Treaty with the governor of St. Auguitiue. At the close of the revolutionary war, great controversies arose, in regard to the disposal which should bo made of the unappropriated landv lying within the limits of the United States, as defined by the treaty of 1783. Lands were considered as unappropriated, if they had not been parcelled out to the whites. If Indians were in possession, and living on amicable terms with their white neighbours, it was taken for granted that the Indian title must be lawfully extinguished, before the whites could be justified in taking possession ; and such an extin- guishment of Indian title could bo obtained by the consent of the ori- ginal owners, but in no other way. Some of the States contended, that the vast tracts lying to the west and northwest of the portion inhabited by whites, should be made a common fund, and held for the common benefit ; as the whole had been secured by the common privations and sacrifices. Other States were determined to retain all the territory, which fell within the limits de- scribed in their original charters. It is not my intention to enter at all into a dispute whi:h was put at rest, as a practical matter, by various conventional arrangements, made between particular States and the United States, from 1781 to 1802. My object, in adverting to the sub- ject here, is, that the reader may be aware of the existence of such a controveray. Virginia set an example of public spirit, by relinquishing U> the United States her claim to the vast tract northwest of the river Ohio ; and i* was contended that Georgia ought to relinquish all claim to the lands on lier western waters. These relinquishments, actual or contemplated, were not considered as affecting, or as likely to affect, the Indian title. Every cession was subject to this title. In other words, every party was considered as bound to deal justly with the In- dians, and to recognise their territorial rights. On the supposition that Georgia had, at the conclusion of the Ameri- can war, an unquestionable right, on every ground of law and honour, to all the land within the limiu of the king's charter, nUgect only to the Indian titk, it would remain to inquire whether her jurisdiction could be fairly and properly extended over the original inhabitants, or their country. To me, it seems perfectly clear, that Georgia could have claimed no jurisdiction at all over the Creeks or Cherokees, or over their territory. They were, respectively, a separate people, living under their own laws, upon their own soil. No argument, but that of force, could have been adduced, in favour o' taking away their possessions ; and, if they had been able to defend themselves, no argument would ever have been thought of. Could the Cherokees now bring into the field a formidable array of bayonets, all these arguments about the hun- ter state, would be suffered to reoose in quiet, with other lumber of the •chools. The more savage the Indians were, the less inclined the peo- 62 p)e of Oeorgii would b« to hiv« a quarrel with them ; and the inor« readily would all their territorial and national righu be acknowledged. The claims of Georjyia, which ore let forth n« beiiiR tupporltd by tiie law of nations and the king's charter, have been examined ; and, unlet* I am mistaken, have been shown to be ultoRcther groundless ; especially when compared with the strong title of immemorial possession. But there is no need of resting the case here, however safe it would be here I therefore proceed to show, that Georgia has, during her whole his- tory, till within a very few years, admitted the national chararrer and territorial righU of the Creeks and Cherokees ; and that she is bound, by numerous public acta performed by her, in the very capacity of which she is most proud and jealous, (that of a sovereign and indepen- dent State,) for ever to admit and respect the rights of the Cherokeea, unless these righU shall hereafter be voluntarily surrendered. In the year 1733, Jumcs Oglethorpe commenced a seltkment on the site where Savannah now stands. In his first letter to the corporation, whose agent he was, dated February 10th, ho says: " A little Indian nation, the only one within fifty miles, is not only in amity, but desiroua to be subjects to his majesty King Gecge, to have lands given them among us, and to breed their child., n at our schools. Fhoir chief and his beloved man, who is the second man m the nation, desire to l)e in- ttructed in the Christian religion." It appears from M'Call s History of Georgia, (on which 1 shall rely as authority for several succeeding •tatementfl,-) that this litile tribe of Indians, which is now extinct, miist have received a splendid account of the power and benevolence of the British king. How much they understood of what was implied m be- coming his subjects, cannot be known. They were doubUess inforn^ ed, that the settlers were intending to live in a compact manner, and \o have schools and preaching ; and that the Indiana would act wisely, if they would be friends to the English, and live in the same manner. They might naturally, therefore, have been pleased with the notioc o Uking farms for cultivation, side by side, with the new settlers. This must have been the meaning of their having landt given them among the settlers, for the old English doctrine of tann in fee, and of the fee being in the king, was too metaphysical an idea to have found a lodg- ment in their unsophisUcated heads. Indeed, it is quite ridiculous, to embarrass this question with the abstract terms, and nice distinctions, which had their origia in the feudal tenures of Europe. The whole philosophy, and the whole morality of the Indian Utle, as opposed to the encroachments of the European setUe«, might be thus expressed by th« Indiana : " These lands are our.. We had them from our father.. , They are not your.. Neither you, nor ?«"' J<^«"' "'^^y*;" J,'"** ever had them. When we consent to your taking them, they wiU be your.. Till then, they belong to us." _• f .u^ u„^. .t If the little tribe of Indians, who had the possewion of *« »"Jl« ** the mouth of Savannah River, consented to the settlement ojOff^orpe, and if their consen* vaa obtained fairly and honourably, (which I am Sot inclined to que. .on.) then the founder of the State of Georgia had a rightful posMssion. The lawfulness of hi. po««»8ion. a. againat the nd the mor* nowledged. porltd by the ; and, unlet* n ; eipeciullj leuion. But rould be here er whole hii- harartsr and the is bound, r capacity of and inde|)en* le Cherokeeit !d. Icment on the I corporation! . little Indian , but desiroui ) given them loir chief and gire to )>e in- :all'8 History il succeeding extinct, must olence of tha mplied in be- ess inforri ed, anner, and U> act wisely, if lame manner, the notion o' ettlers. Thi» them omong ind of the fit found a'lodg- ridiculous, to ) distinctions, , The whole ipposed to the pressed by the 1 our father!. >r your kingi I, they will bt r the Itndf at )f Oglethorpe, (which I am ' Georgia had la against the Indiana, was founded alto|7fther upon their consent : while, in regard to thd whiles of South <^'!irolina, ho might justly pinad the king's charter. " But ns iW\* tribe w.nii incon^i'lcrable," suy^t tlio historian, " Ugle- thorp" jii'lifcd it expcilient to have the otlirr tribes also, to join with them in the treaty," S<», it secna, that Uj^lethor|ic supptxcd the In- dims to be capable of tnakiii|i; a (maty, an nil the rnrly settlers had done, from the dijtcovcry of America to tint day, anil an all his succes- sors continued to do, till tliio sanic Gcor]2ia controversy has, within two years pa^t, led to the discovery, that Indians are fwit capable of being treated with. It ia morally certain, that the colony of O^riethorpe would have been of short duration, if he had told the Indians, that li^, acting under thfi'king of (Jreat Britain, was the owner of oil the lands fnim Savannaii to the Altamaha, and thence westward to the other side of the world ; and that he could not form any compact with them, because they were incapable of making a bargain. Had the whites distinctly avowed such principles of morality and law, they would never have et- tablished themselves on this contiiKint beyond the reach of their ^uns. No other refutation of so monstrous a sy.otem seems ncrt igary, than ita utter impracticability, at the commencement of the settlements. In other words, the emigrants from Europe could never have become strong enough to throw off all the restraints of justice, and disavow itie most obvious principles of moral honesty, unless they had benri, or at least, had pretended to be, honest and just during a period of two hun- dred years. Oglethorpe, having found an interpreter summoned a meeting of the cbien to hold a congress with him at Savannah, in order to obtain " their consent to the peaceable sen Icment of the colony." About iif\y chiefs assembled. Oglethorpe represented to them " th« great power, wisdom, and wealth of the English nation, and the many advantagee that would accrue to the Indians in general, from a connexion and friendship with them ; and, as they had plenty of lands, he hoped they vxnild freely resign a share of them to his people, who were come to settle among them for their benefit and instruction." This is the first overture of the colonists to the assembled Indians ; and it certainly does not look much like demanding the whole country, in the name of the king of England. It seems more like a humble intreaty for permission to remain, which permission was solicited for the purpose of doing good to the natives. The consent of the lords of the soil was obtained, and a treaty was made, of which the following is an abstract : TREATY OF SAVANNAh. The preamble recites the authority of Oglethorpe, and layi that certain " Arti< clee of friendship and commerce" were made between him "and the chief men of the nation of the Lower Creeki," vii. 1 . The colony engagei to let traders carry goods into the " Creek nation" for sale. % The colony engages to make restitution to ihe Creeks for any injury which shall be done to them by white traders, and to punifch the offender* according to English law. 3. If the Creeks should not treat the traders well, the colony will withdraw the English trade. 4. The Creeks say, that they are glad the English have come, and add these memorable words : " Tiiough thit land belonit to ut, (the Lower Creeks,) yet we, that we may be instructed by them, (the Englisb,) do eoiuent and agree* that they * I 6i ■ball m»k. UM of. and pomM. ati tho.. Iwd* «AwA wr na/wn Aa/^ f ' *''f" ^ St- ™ Provided .Iw.yV^ thai th.,. upon .«lU.n, •""/"•J ♦°*"' 'f •" *•' :"a f*, rA« UH ofownWa, and the p,opU ./our naUon, -ucl. Und. .. "h*" »>• •It"'^ «pon belwMn .h.ir beloved m.n, and the head m.n of our ntl.on i and Ihal thu* ''f it' crrir.';;r/;:rto do .„y miury to .«, of th. tr.d.r. .. but .f .„t. m. d,.n» thould tr»nn[ro«i tl.ii article, the nation will dol.ver them up. to be punuh- •d Mcordinij to Engliih law. .... .»,„„ n Thm Creeke airree to apprehend and reatore runaway nejroee. ?: Thl Cnlil to'give no encouragement to white ^.ttler. from other Europeaa "Ti"heiule of pricee of article., oichanffed for peltry, wa. al» agreed upon. This treaty was ratified by tho corporation, in the city of London, October 10, 1733. . , ,. , . . : .k;. So far aa apnea™, ORlethorpe was entirely fair and honest in Ihta whole transaction. Tho Indians confided in all his statements, and both parties doubtless supposed that the colony would conduce to tho per- manent advantage of tho Indians, and that they and the ucttlera would live together in friendship, accordin« to the im()ort ot the preceding articles. The corporation, in ratifyintj the treaty, declare that they are • greatly desirous to maintain an inviolable peace to the world fl *"lt is to bo remembered, that all treaties with tho Indians were written by the English, and that there is no probability that they made the ex- pressions stronger against themselves, than they actually were. Yet here is a firm and decided protestation of the Creeks, Ihot the grants which they made out of friendship, should never bo construed as an ad- mission thai they had no original title. They also took care to provide that no new settlement should be made without their consent. If the colony intended to rely upon the right of tho English king, here was tho time and place to have asserted it, and to have obtained, if possible, the acknowledgment of it from the Indians. , . . , ,. , ^ The principal speaker in this council was a Creek chief, called lo- mochichi. When Oglethorpe returned to England, in the spring of 1734, this chief was induced to accompany him. On being introduced to King George, he made a flourishing spfsech, in which, however, he does not admit that the king of England is his liege lord and sovereign. He gave the king some eagles' feathers, " as a token of everla8l..ig peace ;" and concluded by saying, " Whatever words you shall say unto liie, I will faithfully tell them to all tho kings of the Creek na- tion." This is all the allegiance he promised. Kmg George expressed his kind regards, gave thanks for the eagles' feathers, and concluded by savins, » I shall always be ready to culuvate a good correspondence betw^ the Creeks and my sukject, ; and shall be glad on any occasion to show you marks of my particular friendship.* Here is no arrogant claim of sovereignty, on the ground of the divine right of kings, or any other factitious title. Indeed, the king of Eng- land implicitly says, that the Creeks are nothiatdyectt. When the old chief Tomochichi died, m 1739, he charged his people to remember the kindness of the king of England, and hoped they would always be friendly to his subjecte ; thua making the very disUnc- tion which the king himself had made. .... a • u r:^„«^ in the year 1736, Oglethorpe made a treaty with the Spanwh Gov«^ !K net sttatisn 1, ihftll Mt out htll b« tgrecd ; and thai Ihut ; but if »n J In« I, to bt punish • thtr European igTMd upon, y of London, oneRt in this ints, and botb :e to tho per- cttlera would the preceding ire that they } the world's ! were written made the ex- y were. Yet lat tho grants ued as an ad- ire to provide iscnt. If the ing, here was id, if possible, ef, called To- the spring of ng introduced I, however, he ind Bovereicm. of everlasting you shall say the Creek na- >rge expressed concluded hy orrespondence 1 any occasion d of the divine king of Eng- ged his people nd hoped they e very distinc- Spanish Gover- nor of St. Augustine, in which the second article r«ad« as follovrs : " In respect to the nations of free Indians, colled Creeks, I will use my utmost ainicnbie cndeavorn. upon any reasonable satisfaction given them, to prevail with them to abstain from any hostilities whatsoever, with tho subjects of his Cotholic majesty." Hero it is evident that Oglethorpe saw, as no man in his circumstan- ces could htlp seeing, that the Creeks were an inilepcndent people ; and that they mutt decide for themselves, whether they would goto war with the king of Spain, or not. Ho would odviso them, however, to accept of reasonable satisfaction. No. XVHI. Sseond treaty of Osorgia with the Indians, 1738— Assertion of right by the Creeks — Stipulalioni of Oglethorpe in favour of the Creeks — Claims of Bosomworth War with Virginia and other colonies— Engaijemonti of the king's agent- Treaty of AugUHta, or fourth compact of Georgia, 1703 — Cessions of land in 1773 — Treaty of Uunt's corner, 1777— Second treaty of Augusta, or sixth com- pact, 1783--ObjecU of these treaties— PosUcript. As Oforgia is so strenuous an advocate for State Rights, and protests io stron{ ly ai;ainst any interferonco on tho part of tho general govern- ment, thv) inquiry how far she has herself acknowledged the national character of the Creeks and Cherokces becomes peculiarly interesting. In 1738, Oglethorpe renewed tho treaty of friendship and alliance, of which an abstract was given in rny last number. The next year ha took a journey into the wilderness, four hundred miles, as the distance was then computed, having been previously invited thither by the Creeks of the Coweta towns. There he was received with the greatest kindness, and had the opportunity of conferring with deputies of the Creeks, Chickasaws, and Chorokees. On the 7th of August, another treaty was made between him and " the assembled estates of all the Lower Creek nation." This may bo called THE SECOND TREATY OF GEORGIA WITH THE INDIANS. The instrument begins by enumerating the towns and tribes of the Creeks which were represented in the council. Tho Indians then de- clared, without a dissenting voice, that they adhered to their ancient love to the King of Great Britain. They next declared, that all the ter- ritory from tho Savannah to the St. John's, with the intermediate islands, and from the St. John's to the bay of Appalache, and thence to the mountains, " doth, by ancient right, belong to the Creek nation, who have maintained possession of said right against all opposers, by war, and can show the heaps of bones of their enemies, slain by them in de- fence of the said lands." They further declared, that they were under the protection of the king of England, and would not suffer the Spaniards, or any other nation but the English, to settle upon the territory. They acknowledged that they had granted to the corporation for which Ogle- thorpe acted ' the lands from the Savannah to the St. John's, &nd aa far 9 66 back from th« coast as the li^le flow.' But they reserved to themselves three islands, and a small district ««')"''»"« ^'jy"""''.^-.,,, .. „. take Offlelhorpe engaged, on his part, that the Lnglish should "not take any oZr lands elclpt those granted by the C««* "'•'r;\*^« ^'J^'J^;^ tnd that he would punish any person who should .ntrude beyond the h- mite He issued I proclamation immediately afterwards, .n wh.ch he TavT: "Know ye, that you are not to tnke up or settle any lands beyond the above limits tettkd by me wUh the Creek """"I?- . ^„^„„ .. ..„;„- Abou» the year 1747, a man by U»e name of Bosomworth, hav ng maVried a half Indian woman, claimed, in her right, all the lands m the poss slon of the colony, and artfully induced the Creeks osuppor Sis claim. He greatly endangered the safety of f '^J'^"""!'' "J^'^J " ,fj the settlements into the greatest alarm. It ,s n°^/ / '".^ vers lad he iuteli^ated the Indians to assert that Oglethorpe and »''^f°"°"^" ' 'J beJ^merely tenants at will of the Creeks from !>f ^^^g'^Tg; J Ji"^^ the same phnseolo-iy to the whites, as the legislature of ^eo''^!^ J" recentTy applied to tho Cherokeos, and with much greater P»a«s'W ty- AThough Mr. Stephens, then governor of Georgia, did not «dmU ^he ell of Bosomworth and his wife, yet the f -'VT'lTetendS^ ny would have idle and dangerous for the settlers to have pretend^d any other ri-ht to the country, than that which they hud acquired with the %':?o^V760:ad":iructive war existed between the Cherokees ar^ the coSsts of Virginia, the Carolinas and Georgia O""'^ the^^^^* test many cruelties were perpetrated on both sides. Tj'^ «°™. State^were unable to defend themselves, and applied lor aid to General Amherst, commander of the British forces in A-enca. Jrom ^^^^ dispensable assistance was twice receu'ed. ^ ^''f J '« J^"® ^'J^;^ last made between the Cherokees nnd the colonies, the terms ol wbicn ^ %^n Sr the close of this war, captain Steuart, a sagacious and in- teSnt man, having been much acquainted with ^^-J^Jan •:ha;^^^^^^^^^ was appointed, by the king, superintendent of Indian affairs »<"•«'' tne SoTLth of Virginia." He convened a general congress orinduns SMoSleT where he made a long speech to them, addressing the d.ffer- «rf the hordes or finite boundary, if the Cherokees is not Georgia ide of her inde- I. Few, who was id by four others ce of encroach- ies of the United )erformed by her IS the preceding II, and should se- )untry. ifore I shall offer Dermission, I pro- il government, in npactof 1802be- made between the inds of justice, I It man, with a full sell their country, No. XIX. Statement of important poiitioni on thii .ubjoot-Olher troatlw with Oeorgia- TreXmaS power of the general government-Aro he InUlan. "P»ble of maSTtreaty ?-Aro engagement, with them to he called «*«««««/. .'-The SupreL Court^annot pronounce a treaty \-^^-\^S^ '^^iLT. —Whether the national government can rede the territory ol a State. In the posucript to my last number, I proposed to suspend my com- munications for some weeks, announcinK. at the san.o tune, severs to- pics, which remained to be discussed. This annuncmt.oii. sooms not to C been sufficiently explicit. I must bo permitted, therefore, o state, in the use of different phraseology, the pomts, which ought s 11 to be Examined, before the strength of the Cherokee cause can be justly estimated. . , , u > Unless I am mistaken, it can be clearly shown, „„„.„.„,j That the original right of the Cherokees, confirmed and guaranteed by so many treses, was not, and could not be, affected by the compact of 1802, between Georgia and the United Slates : . - . „.„♦..„ That Georgia so understood the matter, for a quarter of a century after the year 1802, as appears by numerous acts of hor legislature : That the proposed plan for removing the Indians is visijnary,and de- rives no support from experience : , , . u „„»ui„^ That the proposed guaranty of a now country would not be entitled to confidence ; and tiiat the offer of a guaranty, in present circum- stances, would be esteemed by the Chorokocs a cruel insult : That the actual removal of the southwestern tribes, would, in all pro- bability, be followed by great evils to them, without any corresponding benefit to them, or to others ; and . , u i • — .i— That a conscientious man will bo very cautious how he advises the lodions to yield their unquestionable rights, and to commit all their inte- rests to the issue of a mere theoretical experiment, which, to say the least, is very likely to fail, and for the failure of which there can be nei- ther remedy nor indemnity. . , . . . c It has appeared, that the colony of Georgia, (with the cognizance of the British goveinment,) and the State of CSoorgm, in Jhe days of her youthful independence, negotiated with the Creeks and Cherokees on the undisputed basis, that these Indians wore nations; that they hod territorial and personal rights ; that their territory wosin remain in their possession, till they should voluntarily surrender it i and thattreaies with them are as truly binding, as treaties uro between any ««[""»«'»'" whatever. Such is the aspect of ail the transactions, m relation to this subject ; and no candid render of history can avoid these conclusions. Seven formal treaties, all possessing these gonaral characloristics, have been already mentioned. The last of them was dated in the year 1 783, just fifty years from the first sottleiuont cf the oolony. It is probable, that, within this period, many subordinate negotiations were held. The treaty of Galphinton was formed m the year 1785, and is not unfrequentlv referred to. The next year, a treaty of peace was made 70 between Georgia and the Creeks. I have not been able to find these two documents, nor to ascertain the provisions which they contain. Quotations made from them on the floor of Congress by a representa- tive of Georgia, leave no room to doubt, that they are of the same gene- ral character, as the treaties which preceded tiiem. In 1787 tlie federal constitution was formed, by which the power of making treaties was conferred on tlie President and Senate of the Unit- ed States. As this was a subject of great importance, the framers of the constitution not only took care (Art. III. section 2) to assign the treaty-making power of the general government, but to inhibit (Art. I. section 10) the several States from entering into " any treaty, alliance, or confederation." Since the constitution was adopted, no State baa negotiated with Indians. All public measures respecting them have fallen within the scope of the powers vested in the general govern- Ge'orsia, in her character of a sovereign and independent State, adopted the constitution, and thus became a member of the Union. She must be bound, therefore, by all acts of the President and Senate, which are performed by virtue of powers conferred in the constitution. Very recently, some of her public men have asserted, that tlie United States have neither the power to make treaties with Indians, nor to cede any part of the territory of a State. . , . The power to make treaties with Indians is denied on the ground, that treaties can be made with nations only ; and that communities of Indians are not nations. Unfortunately for this theory, it was notori- ously invented to answer a particular purpose. It is not, and cannot be, entitled to the least degree of credit. Communities of Indians have been called nations, in every book of travels, geography, and history, in which they have been mentioned at all, from the discovery of America to the present day. Treaties have been made with them, (uniformly under the name of treaties,) during this whole period. The monarchs of Europe, and the colonies of Europeans, were perpetually making treaties with Indians, in the course of the 17th an! 10th centuries. The colony of Georgia always spoke of the Creelt and Cherokee naiioM ; and the compacts, which she made with them, she called treaties. The framers of the constitution must be supposed to have used language in its ordinary acceptation. When the constitution speaks of a trei^y, it certainly embraces every sort of compact, which the universal voice of mankind had designated by that name. It would seem, according to the present doctrine of Georgia politi- cians, that civihzed people may be called nations and can make treaties ; but uncivilized people are to be cnlled savages, and public engagements with them are to be denominated what such eiigage- ments are to be denominated, we are not as yet informed. There must be a new code of national law, and a new set of writers upon it, in order to help Georgia out of her present imagined difficulties— I say imagined, because there is no real difficulty ; not the slightest. What are the distinctive marks of a civilized people, and who is to decide whether these marks are found in a given case, are matten unexplained. Nor are we told in what respects treaties oetween T!' '^ S^-'-"^^'-^^^ ' ^ = ' ^ ^^ "' ' " ^ '' ^r^m^^- 71 !e to find these thoy contain. J a representa- Ihe same gene- h the power of ito of the Unit- s, the framers ) to Assign the inhibit (Art. I. treaty, alliance, I, no State has ing them have 'cneral govem- pendent State, cf the Union. nt and Senate, he constitution, that tlie United ms, nor to cede on the ground, communities of it was notori- , and cannot be, >f Indians have , and history, in ek7 of America lem, (uniformly The monarchs etually making centuries. The srokee nation*; \ treaties. Tlie I used language eaks of a treaty, ! universal voice Georgia politi- and can make ges, and public It such engage- formed. There writers upon it, (d difficulties — I it the slightest. and who is to ise, are matters reaties between civilized nations are to be interpreted differently from public engage- ments with an uncivilized people. A representative from Georgia said in his place last wmter, that these " agreements with the Indians had improperly been called treaties." (Let it be borne in mind, that Georgia herself always called them /rw- ties.) In a subsequent part of his speech, he spoke of tin- " bad faith" of the Creeks, in not "observing the stipulations, which tiicy had made in these " agreements ;" and to this alleged bad faith, he gave the ad- ditional hard names of "fraud and perfidy.'' We may gather, there- fore, the conclusion, that savages are bound by \\iK\t agreements, though these agreements must not be called treaties. It is contended, however, that the United States are not bound by their agreements wi«h the Che- rokees, because the United States cannot, in their federal capacity, make agreemerUs with savages, although the general government has the exclusive power of making treaties with cicilized nations : the whole of which philosophy and logic, when thoroughly digested and concocted, amounts to this ;-^that treaties l)etween civilized nations buid both the parties ; but that agreements with savage tribes, while they bind the savages, on the penalty of extermination, to observe every one of their engagements, leave civilized parties to break every one of engage- ments, or " agreements," whenever it suits their pleasure, or their mter- est, to do so. This is the morality to be incorpora'od into the new co«le of national law, with another section declaring, that all parties to an agreement, even though it be called a treaty, have the perfect right to decide whether they are themselves civilized, or not, and whether other parties are uncivilized or not. It is by no means favorable to this theory, that Washington, Hamil- ton, and Jefferson had the temerity, (following the uninterrupted cur- rent of example and authority, which had come down from the discovery of America,) to treat with Indians as nations, and to consider engage- ments with them as being treaties, within the meaning of the constitu- tion. From the origin of our general government to the present day, every President of the United States, not excepting the present incum- bent, baa used the words treaty and nation, in precisely the same man- ner ; and every Senate has confirmed the universal use. Besides, the President and Senate must decide, from the nature of the case, what is a treaty, and what is not. Even the Supreme Court cannot pronounce a document not to be a treaty, which the President and Senate have pronounced to be one ; for the constitution expressly declares treaties to be " the supreme law of the land, and the judges, in every State, to be bound thereby." If treaties are the supreme law, they cannot surely be pronounced null and void by auy judicial tri- bunal. ... ,, -ii. Again, if the President and Senate should be justly chargeable with a mistake, in extending the treaty-making power to a subject, to wiiv;h it was not properly applicable ; and if the Supreme Court mighi de- cide, that a certain document, purporting to be a treaty, .s only an agreement between the President and Senate of the United States and another party, although both parties had long understood it to be a treaty, and had observed it as such ;— in such a case, what would honor ^^J".?* 72 and justice require ? Should the people of the United States takp ad- vantage of a blunder made by their highest functionaries, and long ac- quiesced in ? especially if the other party had reposed entire confidence in the validity of the proceeding, and had made important sacrifices m fulfilling his stipulations ? , , ,, ■ j a. . u i u u* Supp.>se, for instance, that an agent of the United States had bought ships ol Mr. Girard, for public purposes, to the amount of $100,000, and the contract had been sent to the Senate and ratified as a treaty. Here wo-dd have been a great blunder, no doubt ; but is Mr. Girard to suffer by it ? When he applies for payment, is he to be told, that the contract 'vith him has improperly been called a treaty ; that the Presi- dent and Senate have no power to make treaties on such subjects ; and that, therefore, he cannot be paid for his ships ? Mr. Girard would be not a little amazed at this ; and might naturally enough exclaim, that, in all his intercourse with mankind, he had never before met with so impudent, and so foolish, an attempt to cheat. As he grew cooler, he might say : " You have had my ships, and sent them to sea. You en- iraged to pay me for them. If you called the contract a treaty, the name is one of your own choosing. Nor had I any thing to do with Bending it to the Senate. I sold my ships to an authorized agent of the government, and he engaged that I should be paid for them. If the transaction is not a treaty, it is at least a fair bargain ; and that is enough for me. I expect honest men, whether public or private, wil- lingly to execute their bargains ; and, as to dishonest men, I shall do all in my power to hdd them to their bargains, whether they are willing, or not." , <. .^ . • J So the Cherokees may plead, that it was not for them to judge, as to the extent of the treaty-making power. They made an agreement with men, who represented their Father, the President. They supposed the President to know the extent of his own powers. At any rate, they re- linquished land, and gave up many advantages, for the sake of a solemn guaranty in return. If the agreement which they made, was not a trea- ty, it was an obligatory contract ; and they have a right to expect, and to demand, that the contract shall be fulfilled. „ ■ j, a The politicians of Georgia contend, that, even if the United States have power to make treaties with Indians, still, they have no power to cede away the territory of a State. This objection cannot be support- ed, in any sense. But it is plausible ; and the whole plausibility rests in a mere sophism. The United States have never ceded, nor attempted to cede, any part of the territory of Georgia. They simply guaranteed to the Indians their original title ; or, in other words, the United States solemnly engaged to the Indiuns. ihat no human power should deprive them of their hereditary posar s«u,ns, without their own consent. This was no encroachment upon hM rights of Georgia ; nor did it relate at all to the territory of Geor-Tia ; which territory embraced those lands • only, that had been previousfv obtained from the Indians. If the treaty of Holston were an encroa'-hment upon the rights of Georgia, why was no complaint made at thcs time ? The senators from Georgia were in their seats ; and the citiz«;a3 cf Georgia were never charged, I believe, with passively surrendering tho »■ < jghts. Why, then, was no complaint made for more than thirty-fiv^ v ^ara ? ■ T^y.y'-zjfflfe jFt^Stl? 73 I States tak() ad- es, and long ae« ntire confidence ant sacrifices in lates had bought ntof $100,000, fied as a treaty, is Mr. Girard to be told, tliat the ; that the Presi- sh subjects ; and Girard would be [fh exclaim, that, ore met with so grew cooler, he sea. You en- ict a treaty, the thing to do with ized agent of the r them. If the fain ; and that is ; or private, wil- len, 1 shall do all 3y are willing, or m to judge, as to 1 agreement with hey supposed the any rate, they re- sake of a solemn B, was not a trea- ht to expect, and the United States lave no power to annot be support- plausibility rests led, nor attempted limply guaranteed the United States er should deprive 'n consent. This lor did it relate at raced those lands ms. If the treaty Georgia, why was Georgia were in iharged, I believe, was no coniplaint But It 18 perfectly clear, that the United States may cede the terntory of any State in the Union by treaty. Such an event may be very impro- bable ; I care not if you say it is morally impossible, that the President and Senate should ever cedo any part of what is really, and truly, the territory of a State. Yet, if such an event should take place, the trans- action would not be void for want of constitutional power. The gene- ral government has the power to make treaties without limitation. Of course, treaties may be made by the United States, on all subjects which are frequently found in treaties of other nations. But there is scare* ly a more common subject of treaties, in every part of the world, than cession of territory. How are foreign nations to know the ex- tent o.f our treaty-making power ? If our President, and two-thirds of our Senators, will cede any part of our territory, there is no help for it. Our security lies, not in their want of power to do this ; but in their want of inclination. If the United States had ceded to England, all that part of the State of Maine, which was in possession of the British forces at the close of the last war, how can it be pretended that the treaty would not be bind- ing ' Indeed, at this very moment, (here is a dispute about the boun- daries of Maine. If the king of the Netherlands should egregiously mistake, in deciding the question now referred to him, which I admit to be very improbable ;— still, if be should mistake, the State of Mame will lose 7,000,000 acres of land ; and all this will bo lost by the ope- ration of the treaty of Ghent. Proud nations have often been mortified, by being obliged to cede some part of their territory. It is not probable that our mortifications will come from that quarter. We have, however, not a few permanent causes of severe mortification. If it should be said, five hundred years hence, that in the middle of the nineteenth century the United States were compelled, by an overwhelming force, to cede Staten Island to a foreign power, the fact would not be a thousanth part so disgraceful, as to ha'jj it truly said, that the United States adopted from Georgia, the maxim, that power is right ;* and, in pursuance of that maxim, de- spoiled an unoffending and sufiering people, of those very possessions, which WE HAD SOLEMNLV OUABANTEED TO THEM FOBEVBB. No. XX. Controversy re»pecting unappropriated l«jd»— Compact of ISOt— The United State* charged with a failure to execute the compact— The Indians not bound by a compact between third parties— Disappointed expectations of Georgia— The word peaceably as much binding upon Georgia, as upon the United SUtei —The public measures of Georgia, till lately, in accordance with the compact- Proclamation of Governor Troup— His opinion of the sacrednesa of treatiei. From the preceding investigation, it is manifest, that the Cberokees can plead against the claims of Georgia, not only that best of all titles, • The legislature of Georgia adopted this maxim, in nearly these words, ta I shall show m a quoUtion from a report, approved by that body, in D«c«mb«r, 1847. immwnorial occupancy, fortified as it » by the solemn guaranty of the TnuS^Scates. in which guaranty the fa.th of Georgia >« pledged with that of every other State in the Union; but they can plead, alao, the re- Mated and solemn acts of Georgia herself, as an indeF-endent State,-- kcts, which stand forth as most convincing proof, that the national cha- racter of the Indians was «cknowle the exclusion of all other purchasers except the claimants, with the right of jurisdiction over the territory, after it should hate been thus pur- chased If, however, there were any lands, which had never come mto the actual possession of whites, and which did not belong to any nation of Indians, such lands would be, in the strictest sense, unappropriated, and the possession of them and jurisdiction over them might properly be assumed without delay, by the United States, or the several States, accordingly as the claim should be settled between these parties. I have nothing to say of the merX , of this controversy. As between the United States and Georgia, it was settled by the compact of 1802, which I will now describe. ... r James Madison, Albert Gallatin, and Lev. Lincoln, commissioners of the United States, and James Jackson, Abraham Baldwin, and John Milledjre, commissioners of Georgia, executed "a deed of articles and mutual PHiion," April 24, 1802, of which the following provisions are all that ttie material to the present inquiry. The State of Georgia ccdos to the United States » all the right, title, and claim, Jch the laid .tatch^w to the juriBdiction and soil of the land.," which now ap- near on the map a» the States of Alabama and MissisBippi. ,, .. , „,„ '^ThBUnfted States engaire to pay Georgia ^1,250,000, from the first net pro- ceedaoysa^ landt»af aconsi'de?atio.afor L expense, incurred by the «ud Bute, in relation to the said territory." , , - "The United States .hall, at their own "pense, exUngui.h, for the u.e ol Oeorgit a. early as the same can be peaceably obtained, «>} '«»f°°*''tf ^1,^^ ueor|{i>, u / of Talassec." &c. &c. " and the United htates sUall, in Krm^'e malt ;Kt!ng^^;r^^^^ tiUe to aU the other land, within the ^*5i'*h«°U?Ue?State. cedes to Georgia " whatever claim, right, or title, they may • hJe to tSetStlon or .oil of an? land.," which are within the chart d ,.«- ili of Georgia, and east of the present line between Alabama and Georgia. The ercat outlines of this compact are, . . . ,. u j u^.k 1 The parties agree upon a division of claims, which they had both made to the same lands. * , 4U„ „„;„. f . The United States give Georgia a sum of money, not as the price Ifuaranty of the is pledged with ad, also, the re- endcnt State, — le national cha- and their rights bound to extin- ed as belonging ] from the com- nt a controversy to the question, I, or the several juitable claim to^ :h lay within the , as preferred by jf the Indians, to Its, with the right e been thus pur- never come into ing to any nation , unappropriated, Ti might properly he several States, •se parties. rsy. As between compact of 1 802, commissioners of aldwin, and John ed of articles and ing provisions are •ight, title, and claim, nd«," which now ap- ■om the first net pro- incurred by the said juiih, for the Uie of reasonable terma, the nited States shall, in )ther lands within the ght, or title, they may iin the chartered lim- 1, and Georgia. irhicb they had both ley, not as the price mA of lands, nor as the price of claims to land, bnt "as a con^deralionfor tc onS of'te U,La Sta.... B„. if Georgia can co„.,c ou n. h im ou of his house, and drive him from his farm, merely because he 5"usedtoseU ht poLessions. Such an -lrni"i.trat.on of law wo^ d not be much admired, except perhaps m the court of Ahab and Jeze- ^'^Nor would it alter the case, if A. and B., at the time of making the colTJCl^cla thatC.wouldsenhisfarm at the fi;«tre^^^^^^^^^ offer. There might be strong mdications, that C- ^°7j,*;®'J'."'*f„„, intemnerate man! a spendthrift, a sot, a vagrant, and that his tarn wouTd' JeedirpaBS int'o other hands : and yet fse md.cat.ons m,gh prove fkllac-tons. C. might become a thnfty h"Bbandman, keep h.s farm clear of debt, and leave it unincumbered to his heirs. And is t^e to be blamed, because he turned out to be anindustnous man, «^d thus disappointed the unfavourable prognosticaticns of B., who stooa %'lo?;riyttJrr'^^^ state, ^uld ha.e long ^ \l •ince eiUnguJshed the title to all the India n landi, which iho claims. Very well. What if she did ? The hiator of every man, and of every communis '•. . ( ' diaappointcd cxpcdalion*. In the aprinjr of 1818, tht! planters vfKieoTgu cspQcted to get thirty cnnta ii pound for cotton, in many subsequent yeais , and they made their purchasos of Und and slaves in that expectation ; but they are now glad to gel ten cenU a pound. This disiip|iointment is a hundred times more felt by each man individunlly, than the failure to got lawful possession of a tract of indifferent land, in the remotest corner ot he state. The terms of the compact between t^o United States and Oeorgi* Mve the rights of the Indians, and were manifestly intended to save tlieni. But if the United States had agreed to take/omW« possessjon of tbR Indian country, and to put Georgia in possession, such an "«[««* ment would be absolutely void, for several reasons. First, it would be palpably and monstrously unjust. Socoiidly, it would be in opposition to previously existing treaties, between the United States and the Indmns, which treaties were the supreme law of the hind. Thirdly, it Mould be in opposition to treaties between Geonin ai.d the Indians,— treaties never abrogated nor annulled,— and therefore Georgia could noi r^ist upon its execution. ,„ , , , , .u- There is not a more established maxim <4 English law than this ; via. that unlawful contracts are not binding. If, for instance, A. covenants with B. in consideration of a thousand dollars, that he will compel C, by threats, duress, or false imprison uient, to sign a deed of land ; and B. should undertake to enforce the covenant in a court of justice, it is profmble that both the parties would find themselves in a penitentiary, muvn sooner than in possession of C.'s land. It is clear, then, that the United States could not ' ; bound, by the compact of 1802, however that instrument mitrht be understood or construed, to do more than purchase the lands of the Cherokees, within the prescribed limits, whenever the rightful owners should be willing to sell. - , X I- J But tluB is not all. A fair interpretaUon of the compact binat Georgia to the same course of proceeding, which had previously been pursued, w the acquisition of Indian lands. This course was per- fectly well »jiOwn to both parties. It was always througl lie medium of the treaty-making power. . i » r The compact says, that the United States shall cjttngvish the In- dian title. The Indians had a title, it would seem ; and a title of such a kind, as wou 1 require the agency of the United i^tates before it could^be extinguished. It would not expire of itself; it would not vanish before Uie march of civilization ; but the immense power of the general government must be brought to bear upon it. Even this power might fcil ; and hence the pro\ ^^ion, that the United States should not be bound to do what was impossible, or unreasonable. At that time, it would doubtless have been thougi t moralK mpossible for our general government to break plain, positive treaties or to take forcible po»- sewion of lands in tlie peaceable occupancy of Indians, even though Umm lands were not protected by treaty. The tiUe was to be exUn- Buuhed peaceaMv, and on rfxuonaiU t^rmt. The law of the sirongeat was not to be relied on. All the parties were to sustain the character l\i t4 lich iho claims, an, and of cverjr 1 the spring; of cntR It pounil for Bir purchajiPS of V glad to |{(-t ten n\c8 more felt by lieieion of a tract ttes and Georgia intended to save DfcibU poMCSiJon n, such an agree- First, it would b« I be in opposition <$ and the Indiana, irdly, it would be Indians,— treatiet n could not \r%nt li law than this ; for instance, A. liars, that he will to sign a deed of lant in a court of d themselves in a and. bound, by the lie umli rstood or Cherokees, within should be willing e compact lindt d previously been course was per- rougi !ie medium extinguish the In- and a title of such i States before it elf; u would not lense power of the Even this power ] States should not le. At that time, ble for our general take forcible pos- lians, even though was to be extin- iw o?"the stronge** itain the character of retsonaMe beinjfs. There was to be a consent of terms, a union of minds, nnd not an appeal to the «wonl. This part of the compact >- it truly obligatory, as any other part ; and as truly obligatory upon Gtur- gia, as upon the Lnited States. It wai stipulated by the commissioners, that the compact shouUl be binding, if the assent of the legislature of Georgia should be given within six months from the date ; provided, that Congress should not, within the same period, repeal the «ct, by virtue of which the agree- ment had been made. The legislature of Georgia assented to the com- pact, and Congress did not repeal the act. The compact therefore took (^n6Cti The enacting clause, by which Georgia ratified the compact, is in the the following words, which ought to be very diligently considered by the leading men cf that state : viz. » Be il enaettd bu the ttnate and houit of reprettnlalivei of the State of Georgia, in general auembly met, and by the nlhonly thereof, That the *»'d «1«« , with aoleinn guaranties; that there was no way of extinguishing the Imii. i title, except by treaty ;— tho legislittii ofGeorgia, knowing all thes( lunga, solemnly ratified tiic compact, i a.^cordance with which tlte ntled States only could ixtinguish t/u ^ndian title, and this could bu done only in a peaceable manner. Tiic coiaj)act containing those prov isioiis was ratifici, " in all its parts;' and declared to be binding on the " Slate, her government and citizens- forever " With what shadow of reason, then, can it be pretended, that Geor- gia has a right to extinguish the Indian title herself, without waiting for the interposition of the general government ; or that (he Clierokeea »ave no title to bt extinguished, being merely tenants at will, or tcnanW by sufferance ? Wheu the politicians of Georgia stretch out their grasping hands to seize th. property of unoffending 'herok<;es, let this word /oreucr, the closing v )rd of a solemn act of legislation, ring in their ears, till they shrink back from oppression, and betake them- selves to tuat course of equity, which is prescribed in the compact, thus solemnly ratified and Muctioned. . x y u u The public measures ofGeorgia, in relation to the Indians, have all, till recently, been conformed to the principle- of this compact of 1802. It is not quite five years since the spurious treaty of the Indian B|,ring was made; a treaty, liich the highest authorities of our naUon set aside for manifest fra J. The proclamations and reasonings of the Governor of Georgia, in regard to tlio effect of this treaty, (on the as* sumption that it was valid,; are, in the main, correct and proper. • '1 » I k ii (! I 78 The treaty wa. made February 1«, 1825. On the «2J of March fol- lowine. Governor Troup i.Mic.l a prorlnrnntion. wh.ch commence, thus : "Where..., by a Irtatv conchided «.th ll.c Crcvkn, \.c. ihe.r c uima lo the wholo territory within th« liin.ta of GcorK.a, wore ceded to iho United SlHt.-s. &c. by which act the territory alorc.aid, nccordmg to the itiDuiationa of the treaty and of the article* of aurcemcnt and cetiion of iK wSon or before'.he first day of Heptember. 1826, pa« into the actual po!«.e«.ionoflheyiale of GeorKm:'&c. In tbia preamble, aome of the pnnc.pal doctr.ncn. for winch I have bein contending, are plainly acknowlcd^ or unpl.ed 1 he Unda are Sere ad.nu.ed to have b.en ccdrd to the United States by a tr'ay;.^^ it m declared tiiat thev will paas into the actual po»ses»ton of Georgia, eighteen montha after the date of the procluinnt.on ; not bfcnu«o (.cor- 2 aa a Hovr-reiRn and independent State, had a paramoun t.tio to them, nor because it wna found written in the laws of notions tj;;' th«c lands belonged to Georgia ; but because the stipulation* of the treaty and the co«/wce unsuccessful. No. XXI. Got. Troup's opinion of the effect of trcal.es-Sod and junidiction fo ♦oe/t'"' —The Cherokeci cannot be «ecur«d in the powcwion of their Undi, it lliey come under the lawi of the Stalen-Hcatoning of Mewri. Campbe.l and Meri- wether-Select Committee of Congrc»-Law. of Georgia-Deci.ions of th« Supreme Court— These deci»ionB a dofciico of Iho Cherokee*. It is at the present moment a favorite doctrine of Georgia, that the right of soil in the Indian -ountry and of sovereignty over it, is vested in that State; and has been thus vested, ever since tho peace of 170 J. As a consequence of this assumed right, the Senate of Georgia openly declared, in December, 1827, that the State might properly take posses- sion of tho Cherokee country by force ; and that it was owing to her moderation and forbeara.ico that she did not thus take possession. But Governor Troup appears to have been of a ditrercnt opinion. In his letter to the Secretary of War, dated Juno .3, 1825, speaking of the treaty, by which he supposed the territory of tiio Creeks had been ceded, (in which supposition he would have been correct, if the treaty had not been spurious.) he says : " By the treaty of the Indian Spring, the In- dian claims are extinguished forever. The article is worded in the present tense. On the instant of ratification, the title and jurisdiction became absolute in Georgia." ...... i ^ Now I humbly conceive, that if the title and jurisdiction became aoaa- lute in Georgia, as a consequence of the treaty, the inference is inevita- ble, that neither the title, nor the jurisdiction, was absolute before that event ; and if the Indian claim* were extinguiahed by the treaty, there must have been claims in existence, previously to that treaty, capable oi being extinguished by it. The Cherokces are now in the same condition, as to title and claims, as the Creeks were, before the treaty of the In- dian Spring ; therefore the Cherokees have, at the present tune, on the authority of Governor Troup, claims yet to be extinguished by treaty. trac E^fl 80 Md neither the title, nor the juri«diction, of the Cherokee ec . Ury, has vnt hecome absolute in Georgia. . .-■ ^ ProcmUne in his argumenit, as to the effect ^( the treaty, Oovernor TroJp say '"Soil and'jurisd.ction go together , and if we have not ^e tiiht of both, at this moment, we can never h^ye either W better Ut^ if the absolute property, and the absolute jurisdiction have not passed to us when are thSy to come ? Will you make a formal concession of the "at'ter ? wLn aid hov. ? If the jurisdicUon be separated from the pro- nertv show the reservation which separates it : 'us impossible. ^ The desTgn of this argument was to prove U> the genera government, that GeoS might properly survey the newi/ acquired lands immedi- ItelythS The Creeks were not obliged u, i .move till September 1826. The argument is this: By the treaty, the right of. soi became absolute in Georgia, and the right of urisd.ctiotv accompanied the r.gbt S soit Serefor'e Georgia might immediately -«««« ^^^-^ P^, ° J '^ vevine the lands. Without giving any opinion as to the conclusivenes. of the Governor's reasoning, it is evident, (and tor this purpose I have tld the passage,) that he considered the title ae having passed by mean, o/!t?re£ Consequently, the title, both in respect to jurisdiction fnTZ, was previously in the Creeks, and not in Georgia; and. of course the title^o the Cherokee country, both in respect to soil and iurisdiction, is now in the Cherokees, and not in Georgia. i eitrelv agree with the Governor, that the soil and jurisdiction go toBeSerVh^e letter of the President of the United State, to the Che- rokees^^ by which they were assured that they should retain possession of £ landl though they should come under the law- of Georgia, must hive been founded altogether in mistake. Where a the power in the general government to sicure individual Cherokees in the po je««.on of Thpr lands after the Cherokee community shall have ceased to exist, and the indivlalso? which it was composed shall have come under the dom nion of four or five different States ? The Senate of Georgia has de- daTed that the Cherokees. as individuals, will not be suffered to retain mrethan a s xth part of the land, which is now in the possession of the CherokScommSn'^^Jy, within the cliariered limits of Georgia. And as to fha six h pThowl'ould the President of the United States secure t^ individuals in the possession of it, or guard against the ''ffe^t of Sta J Iws. which might be designed to operate in such a manner, as should Ineediry deprTve%he Indians of what little property they "ow possess ? 'T he written communication of Messrs. Campbell and Mf"weth^^^ eminent citizens of Georgia, acting as «^o™r^'^"f " °^J''L^J'r States, and being exceedingly desirous to obtain a cession of the Che- rS.ee countr^ for the use of Georgia, these negotiators, in the year m3 sav to the Cherokee nation, "The sovereignty of the country S Zl occupy is iS the United States alone. No State, or foreign Lwt.^can en^^^^^^^ a treaty or compact with you. Tnese privileges ■ Save passed away ; and your intercourse is restricted exclusively to the ^ The dicSne is here plainly asserted, that the g^eral gor>ernmmt^s could treat with the Indies; and that separate States ««" «« "^Jj excluded from such an agency, as foreign «^*7^^^^X^^tS"n right of treating, which the -ommiseior e« call tocercigntif, was noi an J,^ .jL . .n^ ji,v -!tj^'4-, ' ya g^ &t 'j i^ i^Ai ?M^-Ji:hJiikU ee ec . itrVj has ■eaty, Governor we have not the r by better tith. ive not passed to oncession of the ed from the pro- ossible." iral governmenti 1(1 lands inimedi- till September ; of soil became ipanied the right ,he power of sur- e conclusiveness is purpose I have •passed hy meaiw X to jurisdiction ileorgia ; and, of pect to soil and ria. id jurisdiction go tates to the Che- tain possession of 9f Georgia, mast the power in the the possession of 5 ceased to exist, 3 come under the f Georgia has de- suffered to retain possession of the jorgia. And as to I States secure the lie flffect of State manner, as should ly now possess ? and Meriwether, ers of the United jsion of the Che- liators, in the year ty of the country State, or foreign Tiiese privileges exclusively to the al government only cs were as really re. This exclusive cigniy, was not an i'm,* m encroachment upon the natural rights of the Indiana, it being a matter of express and positive stipulation with them, perfectly understood by thein, and operating for their protection. A Select Committee of the House of Representatives, m a Report made to Congress, March 3, 1827, cite a passage from a letter, ad- dressed, by the Senators and Representati\e3 in Congress from Geor- gia, to the Secretary of War, dated March 10, 1824; in which tho writers are understood to say, that the Cherokees are " to be viewed as other Indians, as persons suffered to reside within the territorial limits of the United States, [that is, the limits of the peace of 1783,] and subject to every restraint, which the policy and power of the general government require to be imposed on them, for the interest of the Union, the interest of a particular State, and their own preservation." Here it is implied, that whatever restraint is imposed upon the In- dians, must be imposed by the general government, as well when " the interest of a particular State" is concerned, as when " the interest of the Union" is to be affected. This is certainly the only rational con- struction, which can be given to the whole history of our intercourse with the Indians, since the adoption of the federal constitution. But there is one more source of evidence on this subject, which la of a still more striking character, and which should set the question at rest, even in the minds of the people of Georgia. It is »,he constant admission, on the part of that State, in her most solemn asts of legis- lation, that the Indian lands within her chartered limits, lire acquired for her use, through the medium of the treaty-making pov ?r, which is vested exclusively in the United States. This is manifest in the very titles of her laws, as well as in the enactments. The statute book of Georgia contains an act, which was approved by Gov. Troup, June 9, 1825, of which the following is the title : viz.- » An act to dispoBe of and distribute the lands lately acquired by the United States for the use of Georgia, of the Creek nation of Indians, by a treaty mads and concluded at the Indian Spring, on tho 12th of February, 1825." In the first section it is enacted, " That the territory acquired of the Creek na- tion of Indians, by the Uniteu States, for the use of Georgia, as described in arti- cles of a treaty entered into and concluded between commissioners on the part of the United States, and tho chiefs, head men, and warriors of the Creek nation of Indians," &c. This is a perfectly fair statement of the case. If the territory wat lately acquired of the Creek nation, it manifestly be nged to the Creek nation before it was thus acquired ; and if the territory belonged to the Creeks, it was plainly under their jurisdiction ; for, as Gov. Troup said, in his letter above quoted, which was written only six days before signing this act, " aoU atd jurisdiction go together." If it was acquir- ed ^ the United States, this was done because, under the federal con- stitution, as it has been uniformly administered, the United States have the exclusive power of extinguishing Indian title. If it was acquired fry a treaty, it was because the Creeks, being a nation, could dispose of their common properly by treaty only. If it was acquired for the us* of Georgia, then Georgia had not the use previously ; but the United States had covenanted with Georgia, that they tiTould obtain this tiUe for her use, as soon as it could be obtained " peaceably" and " on rea- sonable terms." 11 . Abundant evidence might be adduced to prove that Georgia, til after tbifperiod, always admitted the exclusive power of ''•^'l"!'!"? »«« J": dian territory to be ve8ted in the United States. But ndd.t»ona proof Ts .mnecessary. The n.an who will not be convinced by the cuations already made, must be beyond the reach of conviction. It hL been said, that the Supreme Court of the U.med States haa declared the juriHiction of the Indian country to be in Georgia. But the decision of the Court, in the only two cases which I have seen QUO ed on Jhis subject, does not touch the question of jurisdiction, or Sresent title ; except Ihat the Court throws out some expressions, which were maS tly intended for the protection of the Indians in their right of occupancy f that is, their right of possessing their own country, to the exclusion of the whites, without limitation of time. The Court decided, in the case of Fletcher and Peck, that the con- tingent interest of Georgia in the Indian territory was of such a nature, that it might be granted to individuals, and might not improperly be desg2 by thf technical phrase of mm m /.e ; though this con- tSnt interest was subject to the Indian title of occupancy. «l.,ch M"!io was certainly to be respected by all courts, until it should have been legitimately extinguished.' 6 Cranch, 14i2. ■ , . „„. .u.* In the case of Johnson and Mcintosh, the point decided was. that ffrants of land, by Indian chiefs to individuals among the whites, can- fottesuSd 'by the courts of this country. Tho 'en«on assi«ne^ is that th« rulers of the European nations, the legislatures of the colo- Ses beore the revolution, aSd of the several states, and the United States, since the revolution, have all asserted the "ciusive right of the government to extinguish the Indian title. The court did not feel Sed in going into the consideration of abstract prmc.nles. I he Stion to be decided was a mixed question of national and municipal faw which had been settled by the practice of the govemmente of E^;; and America, from the 'discovery of this -ntinent to the^j^^^^ sent time. But the Court was very explicit in admitting the indian ^^^^ISerTa^gXt the governments of Europe agreed among them selves to respect the right of discovery as claimed by each, the court """The exclusion of all other European nations, necessarily gave to the nation making the discovery the sole "f ** 'J^ "f^V.*""/ ^taton from the nortw*. and establishing settlements upon it. 8 Wheaton, ^'Sn: •'They [the original inhabitants] were admitted tobeUh a legai as mil as just claim to nta^ SMicm ofU. Jd to use it according to their own discreUon. p. . ^Yet, as the Indiana could not aell to foreign nations, except to t^e dSscovercrs and those claiming under them. (J^" b«";g '^^T"^'' ^f •greement among the European nations;) and ?» they cou'd not seU tJprivate purchasers, (this being a matter of municipal J«^ YiponS *°« whL. and often of'tieaty stipulation between whites and Indian^^^^^ the natural rights of Uie Indians were impaired, or rather circumscribed orlimited. fher« was nothing in this limitation, however, of th« nature , ,;maBTn'iiMrlii!B'isj»f ' orgia, till after quiring the In- dilitional proof / the citations lited States has Georgia. But h I have seen juristliclion, or trcssions, which ia in their right [>wn country, to k, that the con- r such a nature, t improperly be though this con- cupancy, which il it should have C'ded was, that ihe whiles, ccn- renson assigned ares of the colo- , and the United isive right of the urt did not feel principles. The al and' municipal govemmenta of tinent to the pre- Ittiag the Indian eed among them- y each, the court ecessarily gave to cquiring the soil it." 8 Wheaton, idmitted to he the 'ust claim to retain 1 discretion." p. ons, except to tl?e being a matter of they could not sell )al lavr among the ites and Indians,) kher circumscribed reter.ofthflnatuwi 83 of usurpation or encroachment. It was ft matter of necessity, if per- petual collisions were to be avoided ; and a .nuttor of mutual benefit to colonists from different nations; and cspnc.al ly "^ ''«';''^", ° /'"^X, dians. What a scene of strife, enmity, fraud, and bloodshed, would have been exhibited, if EnKl.sh, I- ronch, and Span.sli colonists had been permitted to makopurclm^s of Indian lauds from tlio same tribe, in the same neighborhood, and at tho same tiino ? And what imposi- tions would have been practised upon Indians by whita P"'*^ .'^"7' 'J they had been allowed to make purchases of the natives, wi liout any restraint from the government ? It is both absurd ''"^ "»^ ,'° «7- Btrue thin necessary limitation of the natural righta of the Indians, U limitation which was necessary to the proteciion and security of all parties,) as a denial that the Indians hav6 any rights at oil. ihe ^urt gives no sanction to such an absurdity. Besides the parages already quoted, are several others in accordance with the came prm- ''' "Tt has never been contended," says the court. " that the Indian title •mounted to nothing. Their right of possession has "«v«' J«°" .^"j;'' tioned. The claim of government extends to tlio complete ultimate title, charged with the right of poa;8i' "j well as just claim to retain possession of it," han the fact "«» A. » TeiMd in foe of land, of which B. has a good lease to him and his as- •Ss fir a term of years, proves that A. may bring an ej^'^n^."* ^-j^ B while the term is unexpired. As, In the Utter case. A. and his bji« mu.t wait till the hundred' or the thou.and veart ^'* ^^^''^'^^I'^'^Z «an claim potsession ; so, in the c.ae of the Cherokee.. 0«f f* JJ"« wait, till th!y voluntarily dispo« of their country, H|'2!;«iilS^tS of the treaty-making power, and then Georgia mty tak. tlie unowdiata possession. 84 There is, indeed, another poi.tilIe alternative. If the Cherokees rhould make war upon the United States, they »: ghi then, by the laws of nations, be treated as a conquen d p^iople. In that case, their country would fall under the full sovereign*) : the United States, and by virtue of the compact of 1802, that part of it, which is within the chartered li- mits of Georgia, would immediatciy come into the actual possession of Georgia. But so long as the Cherokees act in a peaceable manner, it would be barbarous in the v tienie to treat them as a conquered people. I speak without any referen-e to treaties, and on the supposi- tion that we were bound only by the .iiaimon obligations of justice and humanity. It is to bo observed, that the '-or t said nothing, in either pt these cases, as to the effect or applicatiou oi treaties What was said on the subject of the rightful occupancy of the Indians, had respect to the naked, claims of peaceable Indians, who remained upon the lands of their fathers. How much stronger the ca^ie of the Cherokee-^ now is, de- fended as they are by bo many solemn stipulations, must be apparent to every candid mind. No. XXII. Report of a joint committee of the legislature of Georgia— Rea«o/iing and moral- ityofthe Report— Lands not held against the Indians by discovery alone- Flagitious immorality cannot be legalized— Instance of the slave trade— Law of Georgia, Dec. 20, 1828— Remarks upoa it— Who are the persons thus reduc- ed to slavery ? — and by whom ? In a quotation, which my last number contained, from a decision of the Supreme Court of the United States, it is said, " That the Indian right of possession has never been questioned ;" and that " it has never been contended that their title amounted to nothing." This dicision was pronounced in 1823. Since that time the politicians of Georgia have strenuously contended, that the Indian title amounts to nothing. In a Report of the Joint Committee of the Legislature of Georgia, which was approved by the Senate of that State, December 27, 18^7, ■re found such passages as the following : The Committee say, that European nations » assorted succesfuUy the right of occupying such parts" of America, " as each discovered, and thereby they esta- bliahed their supreme command over it." ■ ■ n. Again : " It may bo contended, with much plausibility, that there is, m these claims, more of /or«e ,than o^ justice; but they are claims, which have been i« cognized and admitted, by the whole civilized world ; and it is unquMtionably true, that, under such circurustanues, force becomes right" _ ^ The committee suppose that ' every foot of land in the United States « »iold by the same 1 itie. -,„«« The Committee say, that it is contended, that, by the compact of 1802, n. cotm- dereUian was contemplated to i>e paid by the United States to the Indians, for their relinquishraont of tliis title; aud therefore that it was of such a character as wae entitled to respect, and as could not be taken from them unless by their consent. Tiw Committee add, » But we ars of a different opinion." « Before Georgia bseame a party to the artieles of agreement and csasion, [tue the Cherokees 3n, by the laws 3, their country I, and by virtue le chartered li- :tual possession ceable manner, as a conquered on the supposi- s of justice and I either pf these was said on the ect to the naked s lands of their jc^ now is, de- i be apparent to laoning and moral- discovery alone — slave trade — Law lerson-s thus reduo- m a decision of < That the Indian at " it has never " This dicision ;ians of Georgia its to nothing, iture of Georgia, ;ember27, ISSJ?, CBifuUy the right of i thereby they esta- it ther» ii, in thwt fhich have been !••• it i* unquMtionably lited State* ia hold" aotcf 180!Z,a eonii- khe lHdi!ini, for their I a character aa waa M by their sonnent." snt and csMion, [the compact of 1802] the could rightfully have po.MMedheri«lf of those Unds, either byTJo/iahon with the Indians, or by /or«; and .ho had determ.ned, in one of the two ways, to do so : but by this contract she made it tho duty of the United States to sustain tho expense of obtaining for her the possession, provulod it could be done upon reasonable terms, and by negotiation ; but in case it should be na- cessary to resort to/orce,this coi.tract with the United States makes no provision: the consequence is, that fJeorgia is left untrammelled, and at full liberty to pro- •ecute her rights in that point of view, according to her own discretion, and ae though no such contract had been made." . The Committee give it as their opinion," that the right of soil and sovereignty was perfect in Groat Britain; that the possession o4 the Indians was permissive ; that they ware under the protection of that governraenl; that their title was tem- porary ; that they «ere mere te-iants at will ; and that such tenancy ""g^t have been determined at any moment, eitlier by negotiation or force, at the pleasure of The words printed in italics are thus distinguished by the Committee. It might be difficult to tel?, which is most remarkable, the reasoning or the morality of these extracts. ... « The Committee argue, that, as there is no provision m the compact of 1802, by virtue of which the United States are bound to use force upon the Indians, it follows, that Georgia has a right to apply force, whenever she pleases. This is one specimen of the logic. Agam : to most people there would seem to be weight m the remark, that, as tiie Indians were evidently to receive a consideration for their lands, they must have a title which she id command respect. But no ; m view of this statement, the Committee come to a different conclusion. Here is another specimen. . ^ • , • i ^ The morality of the doctrines inculcated by the Georgia legislature may be sufficiently understood by the broad positions, that discovery gave absolute title to Europeans ; that the title of the original inhabi- tants was permissive ; tiiat it was a mere tenancy at will, (whici; is no title at all) ; that the discoverer migiit determine the tenancy at any mo- ment, by negotiation or force ; and that, as all European governments are alleged to be agreed m these principles, "force becomes right. The mhabitants of North America might, tliercfore, have been riglit- fuUy driven into tho ocean, " at any moment^ when the discoverers should have been willing and able thus to drive them. It is to be infer- red, that Cortes and Pizarro were only executing the lawful commands of the king of Spain, when they were taking possession of Mexico and Peru, which, according to this doctrine, rightfully belonged to him ; though, in doing so, they were uuder the unpleasant necessity of murder- frig the uriginal inhabitants. The tlo^.mittee are entirely mistaken, in point of fact, when they say, shr' « eveiy foot oi' land in the United States is held" by such a title as tiBj beftn described ; that is, a tiile in the European sovereign, which, on the moment of discovery, supplanted and subverted all the nihts ol the natives to the lands, on which they were born, and of which (hey were in full possession. It may be truly said, >hat there is not, within the limits of the United States, as fi.Ted by the pv-ace of 1783, a single foot of land held, as against the original inhabitants, by the title ot dis- covery alone. Incompara*^ly tho largest portion of the territory, withm the above mentioned limits, '.lus been purchased of the Indians. Some ■wall portions hava been conquered ; the original owners have been siearly 86 •xterminated in war, or driven from their lands by a Buperior force, or compelled to cede them, as the price of a pacification. But in all these eases, tlie wars had some other origin, than an attempt to enforce the title of discovery. The politicians of Georgia are requested to produce a single instance, after the settlement of the Anglo-American colonies commenced, of any English sovereign, or any colonial governor, or any colonial legislature, or any State Legislature, anterior to the treaty of the Indian Spring, in 1825, having assumed the right of takmg forcible possession of Indian country, at any moment, by virtue of the title of discovery, and without any regard to what the Supreme Court has called " the just and legal claim" of the natives to return possession of their country. The exclusive right of extinguishing the Indian '«rt«, <>' what has usually been called the right of pre-emption, is a totally difler- ent thing from this all-absorbing and overwhelming right of discovery, on which Georgia new insists. If a single instance of such an assump- tion can be produced, let it be brought forward. Let us contemplate the circumstances in which it originated, and examine its clainis to re- ■pect. Thousands of instances can be adduced, on the other hand, of acknowledgments made by emigranU from Europe, and by rulers of every grade from the highest to the lowest ;— acknowledgments, which admitted the perfect right of the Indians to the peaceable possession of their country, so long as they chose to retain it. But if all the governments of Europe had, during the three last cen- turies, held the doctrine now so warmly espoused by Georgia, how utterly vain would be every attempt to defend it, or to make it appear otherwise than tyrannical, cruel, and abominable. Not all the monarchs of Europe, nor all the writers on the laws of nations,~not all the power and all the sophistry in the world,— could alter its character, or convince an honest, candid, intelligent man, that it is entitled to the least respect. What is this doctrine, so necessary to the present claims of Georgia 1 It is neither more nor less than the assumption, that the circumstance of an English vessel having sailed along the American coast from Cape Hatteras to the Bay of Fundy, as the case might be, gave the English king an absolute and perfect title, not only to the coast, but to all the interior ; and that he might therefore empower any of his subjects to take forcible possession of the country, to the immediate exclusion and destruction of the original inhabitants. In the History of the slave-trade, we have a perfect exhibition of the total inefficac of human law to sanction what is flagitiously immoral ; especially after the eyes mankind are fixed upon it. For more than two hundred years, the principal powers of Europe legalized the slave-trade. The judicial tribunals of all countries sustained it by their decisions. It was universally established and assented to. But was it right ? i he voicewf the world has pronounced its irrevocable sentence. Tt i» now piracy, and to have been recently connected with it is indehble infamy. But is it more clearly wrong to take Africans from tlietr native land, than it is to make slaves of the Cherokees «»pon <*«*'• ""tive land '. or, on penalty of their being thus enslaved, driving them into exile ! It may be suppoaed, that thia, ia t« strong a representation of the caw , and that it would be no very awioua calamrty to the Cherokees, if they were to com. under the laws of G«»iii«. Oce wouJd thmk, 87 luperior force, or But in all these ipt to enforce the jested to produce merican colonies governor, or any r to the treaty of of taking forcible uc of the title of iretne Court has tain possession of he Indian title, or is a totally difler- ight of discovery, f such an asaump- et us contemplate 3 its claims to re- ihe other hand, of and by rulers of 'ledgments, which able possession of the three last cen- by Georgia, how to make it appear t ail the monarchs -not all the power •acter, or convince I the least respect. aims of Georgia ? ; the circumstance n coast from Cape , gave the English inst, but to all the of his subjects to iate exclusion and t exhibition of the ^itiously immoral ; For more than two ed the slave-trade, by their decisions, vas it right ? The fitcnce. It is now s indelible infamy. tlieir native land, r native land ? or, into exile ? presentation of Um to the CberokMSi Otse wouJd think, howeter, that the spirit of the Report, from which quotations have been made, must be an indication of what is to be expected from Georgia, m the way of systematic legislation on this subject. One law has already been enacted, with the direct view of extendmg the jurisdiction of Georgia over the Cherokees. It was approved Dec. 20 1828, -and deserves a particular consideration. The first five sections divide that part of the Cherokee country, which falls within the chartered limits of Georgia, mto five portions, attaching each one of these portions to a contiguous county of Geor- gia The sixth section extends the laws of Georgia over white res" dents within the limits above mentioned; and the seventh declares, that, after June 1, 1830, all Indians " residing in said territory, and within any one of the counties as aforesaid, shall be liable and sub- ject to such laws and regulaUons, as the legislature may hereafter pre- 8cribG>" Seo 8. » That all law», UM»ge», and customs, made, eBtablighed, and in force, in the said territory, by the said Cherokee Indians, be, and the same are hereby, on and after the first di^y of Juno, 1830, declared null and void. 9 » That no Indian, or descendant of Indian, residing within the Creek or Che- rokee nation, of Indians, shall be deemed a competent *'l"«*«' °' ^ P" ^"^^"-^ •uit. in any court created by the constitution or law. of this State, to which a white man may be a party." Under the administration of this law, a white man might rob or mur- der a Cherokee, in the presence of many Indians, and descendants of Indians ; and yet the offence could not be proved. That crimes of this malignant character would be committed is by no means improbable ; but assaults, abuses, and vexations, of a far interior stamp, would render the servitude of the Cherokees intolerable. The plan of Georgia, is, as explained by her S^^nate, to seize five sixtlis of the territory in question, and distribute it amon^r her citizens. If a Cherokee head of u family chooses to remain, he mn • possibly have his house and a little farm as- siened to him. Thits it, fafc n.ost favomble supposition. But his rights are not acknowledged. He does not keep the land because it is his own • but receives it as a boon from Georgia. He will be surrounded with five white neighbors. These settlers will not be from the more sober, temperate, and orderly citizens of Georgia, but from the idle, the dissolute, the quarelsome. Many of them will hate Indians, and take every opportunity of insulting and abusing them. If the cattle of a Cherokee are driven away in his presence ; if his fences are thrown down and his crops destroyed ; if his children are beaten, and his do- mestic sanctuary invaded ;— whatever outrage and whatever injury »ie may experience, he cannot even seek a legal remedy. He can neither be a party, nor a witness. He has no friend, who can be heard m h:» behalf. Not an individual can be found, who has any interest in seeing justice done him, and who, at the same time has any power to serve him. Even the slaves of his new neighbors are defended by the self-interest of their masters. But he has not even this consolation. He is exposed to the greatest evils of slavery, without any of its alleviations, tvery body is let loose upon him ; and it is neither the interest, nor the incli- nation, nor the official duty, of the white settlers to defend him. fcvery body may destroy his property ; but nobody is bound to kaep him trom 5',, 88 ■tarving, when his property ii gooe. How long could a Cherokee live under such treaUntJiit as this ? ^ .. , . ,•.,•, Accustomed f.oni his birth to feelings of entire equality and indepen- dence he would find himself, at a single stroke, smitten to the earth, and there held till manacles of a most degrading vassalage were fasten- ed upon him. Aa soon as the net of Georgia legislation is sprung over bim he is equally and instantly exposed to public persecution and pri- vate indignity. He feels himself to be a vagabond, even while standing uDon the very acrtis, which his own hands have laboriously subdued and tiUed —an outlaw, in the house, which he has erected and made com- fortable for himseli; and which, to a white man, would bo a castle,— a trespasser, for innocently treading the soil of his native foreste,— an in- truder, for drinking the pure water of his native sprmgs, or breathing the air of his native mountains,— a stranger among his neighbors,— an alien, on the spot where he was born. .1,1 Who are the human beings, thus suddenly brought into bo deplorable and abject a condition ? Are they Caffres and HottentoU, skulking through the woods, m a state of nudity, or covered only by a few shreds of tattered sheepskin ? Are they runaway slaves, pursued by the ven- geance of exasperated masters ? Are they Ishmaelites, waylaying the nath of inoffensive trawellers, and their hands reeking with the blood of recent murders ? Are they bands of ruffians, collected from the worst amonc the discharged tenants of our penitentiaries ? Have they m- vaded our setUements, driven off the inhabitants, and established them- selves in an unrighteous possession, of which they are now about to be divested ' What is their character, and what is their crime, that thew lands are to be divided, and their persona and families to be put beyond iho nrotection of the law ? , , • , , • „ If they were Caffies, or Hottentots, they should be dealt with kindly ; .nd should be compassionated in their ignorance and degradation. It Lme of them were Ishmaelites and renegadoes, they should be tried in VreRuJar manner. The innocent should not be punished with the ouiltv The guilty should not bo punished without a trial ; and Neither Uie imwceat nor the guUty, should be delivered over to private ""how would an intelligent foreigner, a German, a Frenchman, or an Englishman, be astonished to learn, that the Cherokees aro neither sa- vages or criminals ;-that they have never encroached upon the lands of others ;-th8t their only offence consists in the possession of Snds which their neighbors covet ;~that they are peaceful igncultu- r^ts, better clothed, fed, and housed, than many of the pe.santry, in S civilized countr.-,s;~that they have ^"^^^•"^'J.'Jf ""f^^j^jf J; Sons with tho whites, at different periods, from the first settlement of he contiguous territory by Europeans ;-that these relations have ripened into a firm and lasting peace, which has not b^e" broken ^y a • Zgle act of hostility for forty years ; -that the peace thus cemented tfl e subject of numerous treaties, the bases of which are, a sove- reignty of the Ckerokees, limited, in certain respects, by express Suctions, and a guaranty, on the part of the United States, of pro- tection and inviolate territorial limits ;-that the treaties have been the SaUon of numerous legal enactmente for the protecUon of the a Cherokee live ity and indepeo' en to the earth, ge were fasten- 1 is sprung over ^cution and pri- 1 while standing sly subdued and and made com- bo a castle, — a forests, — an ia- gs, or breathing neighbors, — ^an ito BO deplorable entots, skulking by a few shreds ued by the ven- 18, waylaying the rith the blood of 1 from the worst ? Have they in- jstablished them- [low about to be crime, that their o be put beyond ealt with kindly ; degradation. If liould be tried in inished with the It a trial ; and )d over to private <'renchman, or an B aro neither sa- tached upon the the possession of eaceful igricultu- the persantry, in diplomatic rela- first settlement of 386 relations have been broken by a ice thus cemented rbich are, a sove- )ects, by express ed States, of pro- les have been the protection of the 89 weaker party, whow title has been pronounced, by the highest tnba. M? in our country, to be worthy of the respect of all courts, til it be legitimately extinguished -.-that the Cherokee, «™ ""' ^j-^^.,,*^^^^ having broken their engagements, or done any thmg to forfeit the Sty, which they had 'received as the indispensable condition of the" g Jnu to the United States ;-that they have always been called bro'he« and children by tiie President of the ^nUed States and _byal other public functionaries, speaking m the name of »he country - hat thev have bf en encouraged and aided, in rising to a state of civiliza- tion, by ouV national go?ernment, and benevolent associations of indi- Juals! Zi one grea't motive, presented to their minds by^he 8°vern- ment has uniformly been the lope and expectation of a permanen re- SL, asTrmers^ and mechanics, "PO" »^J'"/'» <>f ^''^^ITS and the enjoyment of wise laws, administered by themselves, "PO" truly «publicanVrinciples ; that, relying upon these «""»"''««• ^'"•^^^".tri bv such a hope, and aided in the cultivation of their minds and hearts b'y bene^oZt individuals stationed among them at '^enr own request aJd partiy at the charge of the general P°vernment, they have greaUy risen to their character, condition, and prospects .-^h^^^'^^.J^r^ "-'^ ffularlv organized government of their own, consisting of Nislal ve. fuSl, a'nd execu'tive departments, formed by t^J '^^ ^^ »; .^'^ President of the United States, and now in easy and natural operation , -Ithat a n°aio ity of the people can read their own language, which was „e ef reducid d writing till less than seven year. «go.«"d never pnnt ed, till within less than two years ;~that a ^^f'^'^'f^.^^'^^^^J^Z young, and some of the older, can read and write the Eng|«h Jj"" „,,,„« —that ten or twelve schools are now attended by Cherokee ^ Sren j^Lrfor years past, unassisted native Cherokees have been Sle to tansact public business, by written communications, which, to Ly the leas . nee^d not fear a comparison, in point of style, sense, and frjument, ^.th many communications "^^^^ '^J^^'^'.^J, SS" Cherl highest functionaries of our national government ;— that these junero keesTn the treatment of whites, as in their mtercourse with each other, ^m Id i.i their manners, and hospitable '"jl^'F f 'X'tSe conduct--and, to crown the whole, that they are bound to us by Uie tiS of cCtia^ity which they profess, and which many of tiiem exem- nlifr as members of regular Christian churches. , , ,. . ^ThesHrTthe men, whose country is to be wrested from them, and who are to be brought under Uie laws of Georgia withou their own rolnt These civilized and educated men ;-U,ese orderly members of V«)ciety, raised, in part by the fostering care of our national gov- ImXfrim rude materials, but now exhibiting f go;^.^««;e« jf «mmeti^ and beauty ;—tiiese laborious farmers, and practical repub- JE^th^ dependent allies, who committed tiieir all to our good fSSon th?^gu«?anty» of Gen. Washington, the " assurance" of Mr. jl'rSL, and^he re"assurance °f Ge»- J"''^'" ""t if'A.fSd sanctioned, as these several acts were, by the S^n«*« *»f l5fl«yS^m SUtos ;-these " citizens of the Cherokee naUon," as we <»I»«f »Je; SZ Wty of Holston j-tiiese fe«ow Christians, '^i^"^''?^^ of Moravian, Presbyterian, Baptist, \nd Me^t ^^'Jf^ It i brought under the lawi of Huorgia, according to which they car be neither witn«,i.e«, n r parties, in a rourt of justice Lnder .he wji, did I any ' It is a in«i ^trous pcrvci-<>on to cull such a state of Hiinga living under law. The? are to be „. rle outlaws on the land of the.r fathera ; and, in thia condition, to be allowed the pnvilege ot choosing between exile and chains. , , . ,. .1 .„j But who are th- men, that impose so fearful an alternative 7 and what is the governmenl, that hesitates to redtcm its pledge? Is it some rotten Asiatic despotism, sinking under the crimes and corrup- tions of by-gone centuries, feeling no respoi.^ibilit ', and regarding no law of morality or religion ? Not so- It is a government, which sprung into existence with the declaration » that all men are created ecp ' ; that they are endowed by their Creator nith certain unalienable righu ; that am'ng these are life, liberty, and the pursuit nl happiness trom a government thus established, thi. flagrant wronj; is apprehended ; and frim a people, who boa«"^''"'«"'=f-°«°'«i' ""'JT;;;" «d of her ri(rht.-The Cherokee countr/not of great value-No cauae of alaim ?,„m,^»;„«mi^im»(rto— Indian tribe, in tne older States-Term., on which £ InTarare eiJSXuld be e.tingu.hed-The con.ent of the Ind.an^ TheconMnt of the United States-Chancellor Kent . deci.10,.. with refcr.nc. to principles of public morality. There are in our country not a few benevolent individuals, who cheerfully admit that the Indians have a perfect right to the possession of their country; that we are boui. i by treaties to defend tins right; and that the forcible seizure and division of their landa would be an act ofcnormoui injustice: who yet suppose, that the continuance of the Cherokees, where they now are, would be extremely mconyenient to Georgia and to the United SUtea. These persons are mclmed o think, that the inconvenience will be found so great, as to amoimt to awrt of moral necessity ; and that, therefore, the sooner the Chero- kecs consent to a removal, the better it will be for them, as well as for the; ' white neighbours. , ,, . ^u Au acquaintance with the real state of facts would convince these benevolent individuals, that they are quite mistaken, '" f^gard to (_he best manner of promoting the permanent good of all parties. The in- convenience, which appears so formidable, is «J'og«;h°r imaginary. It will utterly vanish, at the very moment when the state of Georgia, ' and other white neighbours of the Indians, Bhall be inclined to do what b right. If the disposition to take the property of the weak and de- fencdess and convert it to our own use, is to be ^'e^'^;\''l^ '^^ name of moroZ necesnty, we should be aware that such a doctrine sub- Terta the very foundation of law and order. r.«-„:. It is urged, that if the Cherokees remain where they are, Georgia "*ife h they car ht imler tlie ! wi, state or Ibings le land of their tg« o( choosing Iternative? and pledge ? Is it es and corrup* i regarding no it, which sprung created eq» ' ; jienable rigtiui ; pincss " From jrehcnded ; and nost enliirhtcned y cnrnmunity to lictation. Seorgia not depriv- -No caute of alaim — Terma, on which It of the Indiana — on, with referance individuals, who X) the possession efend this right ; da would be an B continuance of lely inconvenient I are inclined to as to amount to oner the Chero- m, as well as for 1 convince these in regard to the parties. The in- elher imaginary, state of GeorgiOf ;lined to do what le weak and de- ignified with the h a doctrine sub- ley are, Georgia i, deprited oft very valuable portion of land within h«r charioredl.mii.^ B t U". 'n abuse ol language.^ Georgia . deprtved ol othmg. If the a:wh4 would bo v'n-on..nlent to h.m and w^^^^^^^^^^^^ j;gt;M=tS.r i:;^.^ ^;:^:s^;.i.of^atior{u.w.n^ ^z\.:tetr£rr^^^ :!X^i. ri:;:.=dbe.o Tny o? Z Z:L we. , an.l U.e «le.e-eless who are . perpetual dan Jcr of being trodden un.i»- the feet of their betters ! Thu. it is that 11, ^atiablo desircm of men create .magmary trou- bleT'l'he State of Georgia, exclusive of the Cherokee country, has onW s.x or seven ,ouU.ont half of whom are black., to each sq""e mile thai is, o.nitting merchants, tr.v.lers, and mechanics, ess than one wLuo f ml to wo 4„are miles of land. The most remote p.rt of her dnrtered hnits is still in the rightful occupancy of the Cherokees.rhe fbTLnT: nTe'ciSeT stal i?ankly how large a parti, composed '.' mountains and barren tracts, which a Georgian wou'J P o- "'VZliiv Let thSehinVs be stated, and it will be found that the StoTee'cLn!;;'!! n"? by aV means so valuable, as ha. commonly 'it^clTCke no odds as to title, whether the soil be as fertile as tb. hanks of the Ganges, or as barren as the sands of Arabia , but t should be knownf that the value of the property here at snke is «o°Sg, compared with the feelings of the Clierokee,,; not to mention The importance of the principles to be deeded. Though the Cherokee cTurrris in a healthful climate, and is a pleasant and <^"">fo'-»f,5'«;^"- S^nce for the original inhabitants, the far greater part of it would bo left Sucl^d for mLy years, if exposed to sale in the same manner as the Tublic knds generally of the United States. The -'««;' °fG-;S^«J therefore, is inconsiderable ; nor would the P'^^'Pt"'^ f i'',^\ul\*^,ri materially affected, if another acre were never vo be added to the tern- nrarbe?nXttTrgrt%nconvemencewi^^ ha"ng anmpmum .^impirior-a separate, independent conjmunity surroLded bVour own citizens. But in what do these f"ghtf"l '""!"■ veniences comist ? A little pacific communUy of I« J"^"'' ""^K^JJ the mounUios, attending to their owu concerns, and treaung aU who ■■ 92 paM through their borders with kindne* and hoipitality, ia lurely no fery great cauae of alarm. If there were a territory in posaeaaion of a pow- erful and hostile nation, biuI in iho immediate vicinity of our white set- tlementa, where our rivals and enemica miulit sh«!lter themselvea, while plotting airninit our peace, and where fugitivea from jnslice could find ft refuge, there might be some reason for apprehonaion ; though even these circumstances would never excuse a violation of treaties. But the Cherokeea can never have any interests adverse to our national prosperity. They have solemnly agreed to live under our protection, and to deliver up fugitives from justice. We have by treaty a free na- vigation of their waters, and a free passage through their country. What more can we reasonably desire ? But if they were an inconvenience to us, as a consequence of the.r having been aboriginal inhabitants on this continent, how are these in- habitants to blame ? If we are incommoded, by having a little Indian community in the midst of us, we brought the evil upon ourselves by pushing our settlemenU into the wilderness, in such a manner as to sur- round our red brethren. They did not compel us, nor allure ui., nor in- vite us, to such a course of proceeding ; and they are not under the slightest obligation to give up their national existence to save us from this supposed inconvenience, though it were many times greater than it has ever been alleged to be. The dangers from an imperium in imperio are, in the case before us, ftltogether chimerical. Among our own citizens, we have governments within governments, of all sizes from a school district upwards ; and all sorts of corporations with limited powers. In Great Britain, there is a vast diversity of customs, rights, franchises, and exemptions, peculiar to different towns, boroughs, cities, and counties, and to the larger divisions of the realm. Germany is almost wholly composed of smaller commu- nities, each possessing a limited sovereignty ; and many of them conduct- ing their municipal affairs according to their own discretion. But, (which is more immediately to the purpose,) there hove been separate communities of Indians, in most of the older members of our confede- racy, from the first settlement of our country ; and no disastrous conse- quences have followed. At the present day there are, in the State of New York, several small tribes of Indians, living under their own laws, and not partaking of the rights of citizens of the United States. They have been declared, by the highest legal tribunal in that State, to be •• not citizens, but distinct tribes or nations, living under the protection of the government." The opinion of Chancellor Kent, which I never saw till all the preceding numbers were in the printer's hnnds, supports the positions which I endeavoured to establish, in the examination of treaties. Yet the State of New York does not appear to suffer, from having permitted these tribes to remain on their own land ; — to hold it in common , — to remain exempt from taxes, military duty, and every kind of public burden ; — and to sustain a qualified sovereignty, though surrounded by white neighbours. If the time shall ever arrive, when these sovereignties may become extinct to the mutual advantage of the Indians and whites, the manner of bringing about such » cliangis will demaiad the efforts of the most dis- II. r is fureljr no verj ission of a pow- r our whittj aet' lemselvct, while nice could find n ; though even r treaties. But to uur national our protection, treaty a free na- r country. What quencc of their low arc these in- \g a little Indian pon ourselves by iianner as to sur- allure u^.^ nor in- ■e not under the I to sa ve us from 9 greater than it e case befcre us, lavo governments ipwards ; and ail ritain, there is a tions, peculiar to le larger divisions smaller commu- of them conduct- discretion. But, ive been separate s of our confede- diiiastrous conse- , in the State of ir their own laws, ed States. They that State, to be er the protection snt, which I never 's hands, supports he examination of r to suffer, from land ;— to hold it 7 duty, and every ivereignty, though ties may become whites, the manner [B of the most dis- ^"NijB** mm IMAGE EVAUATION TEST TARGET (MT-3) / o //A ¥/ ^ / Ua y. 1.0 I.I -' ilM 12,5 lU 12.2 m ,4C 1.25 III.4 IM 1.6 PhotographJc Sciences Corporation %:ip \ # s V \ \ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ^% v €^ <^ <^ ^1.-^ "<*. 17 ^ % ^ ! CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut canadien de microreproductions historiques ■^^ 93 interested men in our country, and the councils of the wisest. In the mean time, let us hear the advice of Chancellor Kent on the subject. "When the time shall arrive for us to break dovn the partition wall between uj and them, and tc annihilate the political existence of the !"«''''»* ""»^l°"'».'; J tribae, 1 trust we ehall act fairly and explicitly, and endeavour t" effect it with the full knowledge and assent of the Indians themselves, and with the most scru- pulous regard to their weaknesses and prejudices, and with the entire approba tion of the government of the United States. I am satisfied that such a course would be required by prudence, and would become necessary, not only for con- science' sake, but for the repuUtion of our justice." Johnson i Reports, vol. 20, p. 717. The learned jurist was speaking of tha small tribes, in the State of New York, whose domains are now restricted by their own consent to tracts of a few miles square, and whoso numbers are roduced to a tew hundreds. These tribes, having resigned many attributes of sovereignty which the Cberokees still retain, and living in the midst of a crowded population, may possibly find it for their interest to abdicate the sove- reignty, which still remains to them. In such an event, the chancellor lavs it down as indispensable, that the government of New York should^ « endeavour to effect the change, with the full knowledge and assent o\ the Indians themselves.' This is, indeed, one of the first dictates, which would be obeyed by an upright and honourable mmd : but how much more imperative is it in the case of the CherokCes, who number thousands for the hundreds of Oneidas and Senccas ;— who have a suf- ficient territory, in which they can secure themselves, under the protect- ing laws of the United States, from molestation on the par* of the whites ;— who have a regular government of their own, suited to their habits, their condition, and their wants ;— and who have their relations with the United States distinctly marked and defined by vaiious treaties. If, however, the Cherokees can be persuaded, by fair and honest argu- ments, that they will be goiners by giving up their sovereignty, either now or fifty years hence, let their consent be obtained. Let them always be made to feel, that they are free agents ; — not in such a sense as the traveller is free, when he delivers up his purse, with a pistol at his breast ; — but as truly free as any man, or body of men, who make a contract under the protection of law, and on terms of perfect recipro- city. The Cherokees should, especially at this juncture, bo again assured, thht they stand behind the shield of the law, — the supreme law of the land — which, in a government like ours, should afford a defence not less perfect, and certainly much more convenient, than could be af- forded by a cordon of 150,000 bayonets, or a wall of adamant from th« earth to the skies. The chancellor says, also, that this change should be effected, (if at all,) " with the most scrupulous regard to the weaknesses and preju- dices" of the Indians. He would not justify the use of cold and unfeel- ing language, such as : " Indians must always retire from the march of civilization. It is in vain to attempt to .save ihem." He would much sooner lament the frauds, and impositions, which hr.ve been practised upon them by profligate and interested white men, and the deficiency of benevolent feeling towards them, on the part of many, who would by no meana, tolerate fraud or oppression. Justice requires that it sliould b« i ' 94 unid, however, that most of the legislatureB of the older Statei framed lawa for the protection of Indians, with a most benevolent regard to their cood, nnd on the genuine principles of Christianity. The chiinccllor says again, that the change should be effected, "with the entire approbation of the government of the United States. This change, be it remembered, had reference to the little tribes, in the btate of New York. Yet the highest law character in the State, delivering nn opinion before the Senate, sitting as the highest court of law m the State, did not apprehend an impeachment for sacificmg State Rights, when he declared, that if an arrangement should be made on this sub- iect, it should be made " with the entire approbation of the goremment of the United States." And the Senate, consisting of thirty members, or more, from all parts of the State, supported the re«:ioning of t >e chan. cellor, with but a single dissenting vote. IIow different a spirit is here, from that which prevails in Georgia ! . , .i» „i,„„ . .iin,. At the close of the paragraph, which I have quoted, the clian. ollor recommends this course, not only as the most prudent course, and nc« only for conscience^ sake, but for the reputation of our J"'^'^''-.jJ°: ever fears God, or regards man -.-whoever possesses an enlightened conscience, and feels his accountability to his Maker, or w'^hes to de- Lrve the confidence and respect of good men, and the ?'« ' "f^ f f J times ;-such a man, says this learned judge in effect, will take heed, that he deals kindly and justly by the Indians. Hamilton, who is now admitted, by all pa.tios, to have been an illus- triour^atesmin. and to have felt deeply for »''« honour of his country, aaid resoectine treaties, that they are " contracts with foreign nations, w^ch hTve S for^e o law. but derive it/rom the obligations of good S" [Federalist, No. 75.] He reckoned, as -"^-^l^^^^^^' tions of those who were to make treaties, " a ntceand «»£^ 'fJJ?- lUvto national character^ These qualifications he expected to find, .n i seSeTby the legislatures of the several States, as representatives Tthe worth. Se dignify, and the character of the country, m the highest l»mnch of our national legislature. .1 . v . I??s one o the most encouraging signs of the present times, hat pub- lic men are made to feel their accountability to the public, and their oblivion to bring their measures of state withir^ the rules of pnva e . I regard to a single administration. Ihis de- rnToVarotitlSy^ZlU be'made by the P-P|-f -ery country • and if rulers, whether kings or presidents, parliaments or coSgreLes" perpetrate ^cU in their public character, which would be peEf J a%rivate man, they will be P^°P°""^f. «",!«*, ^*,"J'f Tn cases of great importance, if thus pronounced guilty by the voice ol iispassTonatf and intelligent men. their names will be consigned to '" Thl"great principles of morality are immutable. They bind nations. Commentaries. 99 ler Statci frnmeJ evolent regard to ity. le effected, " with !d States." This ribes, in the State State, delivering )urt of law in the ing State Rights, node on this sub- ' the gottmment of hirty uiembers, or ning of the chan' nt a spirit is here, id, the chancollor course, and " not ' justice." Who- 's an enlightened , or wishes to de- I gratitude of after ct, will take heed, lave been an illus- jur of his country, 111 foreign nations, bligationa of good ong the qualifica- 1(2 uniform aemibi' expected to find, in , as representatives intry, in the highest ;nt times, that pub- ) public, and their lb rules of private iference to a single jtration. This de- he people of every Its, parliaments or r, which would be need gu^y; and, lilty by the voice of U be consigned to They bind nations, dividuals. On this Chancellor Kent's (5 Ifcw from that of eth- enU are not a* strictly bound by th« obliKationi of truth, juttiee, and humanitr, in reletion to other pow- eri, a» they are in tkfl management of their own local concerns. States, or bo- dies politic, are to be coniiuerud as moral persons, having a public will, capable and fttts to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with hir^ into the service of the community, the same bind- ing law of morality and reli^ < which ought to control his conduct in private life." Vol. 1. p. 2. »Tho law of nations, so far as it is founded or. principles of natural law, ii equally bindinj; in every age, and upon all mankind. But the Christian nation! of Europe, and their descendants on this side of the Atlantic, by Iho vast superi- ority of their t nu.nents in arts, and science, and commerce, as well as in policy and government ; and, above all, by the brighter light, the more certain truths, and the more definite sanctions, which Christianity has communicated to the ethi- cal jurisprudence of the ancients, have establiehud a law of nations peculiar to themselves." p. 3. Christianity, then, is the basis of the present law of nations. Another learned judge has recently duciurcd, on a public and solemn occasion, that Christianity is a part of the common law. " One of the beautiful boasts of our municipal jurisprudence is, that Christianl ty is a part of the common law, from v/hich it seeks the sanctions of its rights, and by which it endeavours to regulato its doctrines. And, notwithstanding the spe- cious objection of one of our distinguished statesmen, the boast is as true as it is beautiAil. There never has been a period, in which the common law did not recog- nize Chritlianity at lying at tti foundationt." Judge Story's Inaugural Di«' course, p. 20. If Christianity is the basis of the law of nations and of the common law of the United States, it surely is nut out of place, though it should be unnecessary, to remind our lawgivers and judges, that one of the great maxims of Christianity, for the regulation of intercourse among men, is, that we should do to others whatever we would desire that they, in lUce circumstances, should do to us. Let the people of Georgia, and the people of the United States, seriously reflect, whether they should be willing to receive the same treatment, with which the Cherokees are threatened. Would they be content to go into exile, or to come under the laws of a foreign state, with the studied premonition that they could be neither witnessed, nor parties, in a court of justice ? Let the appeal be made to conscience ; und unless the conscience be buried under impenetrable ignorance, or seared as with u hot iron, the answer cannot be doubtful. No. XXIV. Plan for the removal of the Indians — Objections to it — invented for the benefit of the whites — It speaks too much of generosity, too little of justice— It is visiona- ry—The Indians unwilling to remove — No good place can be found for them — Government cannot fulfil its promises — There can be no guaranty — Privations of a removal, and quarrels afterwards — Where shall they remove next ? — If re- moved, the Indiana will not confide in the government — Conciusion. I have now arrived at my closing number ; in which I propose to ex- amine the plan for the removal of the Indians beyond the Mississippi. This plan, so far as its principles have been developed and sanctioned by the government, is as follows : — Congress will set apart a tract of country west of the Arkansas ter- n ^^ .. - «*j..n« IRQ milei lone and 100 miles broad, and will guaranty IS S:Sa^sSn- oAndiana. Uponthi. tract will be collected It an a pen;«»"»' ^ resident in different States and Territories. The U„Tj;^lUe dtded aln« ^ and individuals, as Congress shall iTrlt TJe ntn, thus'coUected. will be governed by white rulers ; E. by agent, of the United States ; till the time sbal arrive, when IhPv can be safely trusted with the government of themselves. At pre- sent they are to be treated as children, and guarded w th truly paternal iXitude The United States w.ll bear the expense of a removal ; and S Ssh impkments of agriculture, the mechanical arts school, and Tthor means of civilization. Intruders will be excluded. Ardeni sSrits will not be allowed to pass the line of demarkation And. a. a conse^rence of all these kind and precautionary measures, it is supposed Sat the Indians will rise rapidly in various respects ; that they w.ll be contented and happy In their new condition ; and that the government wTm r?t and rSe the appellation of benefactors . This « the plan ; TnH the following considerations appear to my mmd in the light of cb- ^''^^'Tt is a sIITpicious circumstance, that the wishes and supposed ia- tereiu o tJe wSltes. and not the benefit of the Indians, afford alUbe Imnulse under which Georgia and her advocates appear to act. The iLunTare in t^e way of the whites ; they must be removed for the IrScation of the whites ; and thi. is at the bottom of the plan But ff the CheJokees had been cheerfully admitted, by the inhabitants of Georgia. rpSess an undoubted right to the permanent occupation of Sountry; and if this admission were made in terms of kindness, and with a V ew to gs suited to accomplish her desires. It is not common, for a party deeply mter- «teS?rdeJise the most kind and benevolent way of treatmg another n«Ttv whose interests lie in a different direction. „ u r ^TC plan ia te be distrusted, because its advocates talk much of futere geneSy and kindness ; but say nothing of the P^eaent obliga- tS of honor, truth, and justice. What should we say, m pnvate life, ■ to i man. who refused to pay his bond, under hand and sealr-a bond, whirhe dfd nordispute. LI which he had acknowledged b|Jorcw^ nM^s a hundred times over,— and yet should ostentatiously profess hSf diSXd to««ake a great many handsome preaente to the obhgee. if^obligWwould only be lo discreet aa to deliver "P tjeb^! Would it not be pertinent to say. " Sir, UjuH before yey an gmunm , -^rrt pay your bond, tnd talk of preBWits afterwards. and will guaranty t will be collected Territories. The IS Congress shall I by white rulers ; shall arrive, when mselves. At pre- with truly paternal of a removal ; and tl arts, schools and excluded. ArderU Ication. And, ai a jres, it is supposed ; that they will be at the government This is the plan ; in the light of ob- I and supposed in- ians, afford all the ppear to act. The e removed for the 1 of the plan. But r the inhabitants of anent occupation of I terms of kindness, J to Mr. Jefferson's I the state of things, ne. Is it likely that ith the sole view of tan be beneficial in nt n.«5mber of Con- se nun:^erB, that the troy the Indians, and of this opinion ; but twenty of our public saying, that Georgia \Tceet ; for she openly in question is suited a party deeply inter- r of treating another Ivocates talk much of )f the present obliga- ire say, in private life, nd and seal, — a bond, owledged before wit- ostentatiously profess tresenta to the obligee, deliver up the bond? ore ym art gtMnma ; irdfl." Let the government of the United States follow the advicb ijiven by Chancellor Kent to the State of New York. Let our public functiona- ries say to ^he Chcrokecs ; "The (fnited States nre bound to you. The stipulations are plain ; and you have a perfect right to demisnd their literal fulfilment. Act your own judgment. Consult your own interests. Be assured that wo shall never violate treaties." If this language were always used ; if acknowledged obligation* were kept in front of every overture ; there would he leas suspicion attending advicS, professedly given for the good of the Indians. It is not my province to question the motives of individuals, who advise the Cherokees to re- move. No doubt many of these advisers are sincere. Some of them are officious ; and should beware how they obtrude thoir opinions, in a case of which they are profoundly ignorant, and in a manner calculated only to weaken the righteous cause. All adviser*, of every class, should begin their advice with an explicit admiaaion of present obligationt, 3. The plan in question appears to me entirely visionary. There has been no experience among men to sustain it. Indeed, theoretical plans of government, even though supposed to be founded on experi- ence gained in different circumstances, have uniformly and utterly failed. So wise and able a mnn as Mr. Locke was totally incompe- tent, as the experiment proved, to form a government for an Americon colony. But what sort of a community is to be formed here? Indians of different tribes, speaking different languages, in different states of civilization, are to be crowded together under one government. They have all heretofore lived under the influenca of their hereditary cus- toms, improved, in some cases, by commencing civilization ; but they are now to be crowded together, under a government unlike any other that ever v as seen. Whether Congress is to be employed in di- gesting a municipal code for these congregated Indians, and in mend- ing it from session to session ; or '.vhether the President of the United States is to be the sole legislator ; or whether the business is to b« delegated to a civil or military prefect, we are not told. What is to be the tenure of land ; — what the title to individual property ; — what the rules of descent ; — what the modes of conveyance ; — what the re- dress for grievances ; — theso and a thousand other things are entirely unsettled. Indeed, it is no easy matter to settle them. Such a nian as Mr. Livingston may form a code for Louisiana, though it requires uncommon talents to do it. But ten such men as he Could nut form a code for a heterogeneous mixture of Indians. If this embarrassn^ent were removed, and a perfect code of aborigi- nal law were formed, how shall suitable administrators be found ? Is it probable that the agents and sub-agents of the United States will unite all the qualifications of Solon and Howard ? Would it be strange if some of them were indolent, unskilful, partial, and dissolute ? and if the majority were much more intent on the emoluments of office, thaa on promoting the happiness of the Indians ? One of the present In- dian agents, a very respectable and intelligent man, assured me, that the plan for the removal of the Indians was altogether chimerical, and, if pursued, would end in their destruction. He may be mistaken ; but hi* personal experience in relation to the subject is much greater than 13 >.-1';l,-niri'>'Ti-'- "f^ 98 that of any perton, who hat Uta engaged in forming or recommending *''VThfl four southwestern tribes are unwilling to remove. They ouKht not to bo confounded with the northern Indian^ as they are in Tciy different circumstances. The Cherokee, and ^^hoctaws are np- 'dly improving their condition. The Chickasaws hava begun to fclluw n the lame iourw,. These tribes, with the Creeks, are attached to Sir nat^e soil, and very reluctant to leave it. Of th.s the evidence U mosrabundPnl. No per^in acquainted with the actual state ol ihing- ".^deny. that the feelings of the great mass of these people, apart from extraneous inHuence, are decidedly and strong y opposed to a Removal Some of them, when pressed upon the subject, may remain •ilent. Othen,. knowing how little argument avails against power. SLv fiintly a,.swer, that they will go, ./ Ihey mu,t, and ./ a suitable ^e^n be found for th^m. At the very moment, when they are say- CfhrtheV will add their strong conviction, that "« 7'«''»« P'^^ can be found. In a word, these tribes will not remove, unless by com- Dulsion. or in the apprehension of force to be used hereafter. •^5. The Indians asliert. that there is not a sufficient quantity of good land, in the contemplated tract, to accommodate half 'h^T F"*f numbers; to say noUiing of the other tribes to be thrust into their comp!"y Even the agenU of the United States, who have been em- Jloyed with a special view to make the scheme popular, "J""} » '»» Siereisa deficiency of wood and water. Without wood Jor fences and buildings, and for shelter again.t the furious northwestern blasts of . iinter. VJimiian, canriot be <5.mfortable Without running stream- they can never keep live stock ; nor could they easily *»'« ^e^ -"^ cisterns for the use of Uieir famihes. The vast prairies of the west wiU d mate ly be inhabited. But it would require all the jvealth. the en. terprise.andthe energy, of Anglo-Americans, to '""'f* * . P^'P*'""" settlement upon them. Nor. if the udgment of travellers is to be re- Sed Z wUl such a settlement he made, Ull the pressure of popuktion render^ it necessary. The most impartial accounts of the counjn^; J> the west of Missouri and Arkansas, unite in representing it as «»>?""«- less prairie, with narrow stripes of forest trees, on the margin ot nvers. The good lind, including all that could be brought into use by partially civUized men, is sUted to be comparatively small. _ 6. Government cannot fulfil its promises to emigrating In«l'8n»; " is incomparaWy easier to keep intruders from the Chewkees ^here bey^7«e. than it will be to exclude them from »«•«"««[,«»"" 'y- The present neighbours of the Cherokees are, to a «on"<'«",*>l« "}?"* men Sf some property. respecUble agricultur«ts, who would not thmk of any encroachment, if the sentence of the law were pronounced firmly in fa/our of the occupanw of the eoil. Stealing from the Indians is by no mean, so common, as it was fifteen years ago. One 'e-^"*" »•/;;* the worst class of white settlers has migrated farther w«V .^f "^ «Uted, even now. to hover around the emigrant Creeks, like ^"»"r«8 It may be laid down as a maxim, that so long as Ind'a"? Pos^**^""^ thing, which is an object of cupidity to the whites, they will be exposed to ^e frauds of interested speculators, or the intrusion of idle ami worthless vagranU : and the farther removed Indians are from tlie ir recommending I remove. They dy as they are in hoctaws arc rap- I begun to Golluw , are attached to thic the evidence ual state of things ese people, apart l\y opposed to a }ject, oiajr remain Is against power, and if a suitable rhen they are say- no suitable place e, unless by coin- reafter. I quantity of good lalf their present thrust into tbeir )o have been em- ipular, admit that wood for fences thwestern blasts of t running streams, lily dig wells and Bs of the west will lie wealth, tlie en- nake a prosperous vellers is to be re- isure of population of the country, to iting it as a bound- e margin of riyem. ito use by partially rating Indians. It J Cherokees ^here n the new country. ;onsiderable extent i)o would not think pronounced firmly tn the Indians ia by One redson is, that r wesC. They are eeks, like" vultures. Indians possess any hey will be exposed trusion of idle and iians are from the notice of the government, the greater will be their exposure to the arts, or the violence, of selfish and unprincipled men. . ,, . . Twenty years hence, Texas, whether it shall belong to the United States or not, will have been settled by the descendants of Anglo- Americans. Thp State of Missouri will then bo populous. There will be gre; i roads through the new Indian country, ami caravans will \m Erasing and repassing in many directions. The emigrant Indiana will e denalionalixed, and will have no common bond of union. Will it be possible, in such circumstances, to enforce the laws against intruders. 7. If the Indians remove from their native soil, it is not possible that they should receive a satisfactory guaranty of a new country. If a guaranty is professedly made by a compact called a treaty, it will b« done at the very moment that treaties with Indians are declared not to be bindin", and for the very reason that existing treaties are not strong enough to bind the United States. To what confidence would such an engagement be entitled ? , , c . e It is now pretended that President Washington, and the Senate of 1790, had no power to guaranty to Indians the lands on which they were bom, and for which they were then able to contend vigorously, at the muzzle of our gnns. Who can pledge himself, that it will not bt> contended, ten years hence, t!iat President Jackson, and the Senate of 1030, had no constitutional jiower to set apart territory for the perma- nent residence of the Indians ? Will it not then be asked, Where is the clause in the constitution, which authorized the establishment of a new and anomalous government, in the heart of North America ? The con- stitution looked forward to the admission of New States ir to the Union ; but does it say any thing about Indian States ? Will the men of 1840, or 1850, be more tender of the reputation of President Jackson, than the men of the present day are of the reputation of President Washington ? Will they not say, that the pretended treaty of 1830, (if a treaty should now be made,) was an act of sheer usurpation ? that it was known to be such at the time, and was never intended to be kept ? that every man of sense in the country considered the removal of 1830, to be one of the few steps, necessary to the utter extermination of the Indians ? that the Indians were avowedly considered as children, and the word treaty was used as a plaything to amuse Ihem, and to pacify grown up children among the whites ? If the design is not to be accomplished by a treaty, but by an act of Congress, the question recurs. Whence did Congress derive the consti- tutional power to make an Indian State, 150 miles long and 100 roiWs broad, in the heart of this continent ? Besides, if Congress has the constitutional power to pass such an act, has it not the power of repeal- ing the act ? Has it not also the power of making a new State of whites, encircling this Indian community, and entitled to exercise the same power over the Indians, which the States of Alabama and Missis- sippi now claim the right of exercising over the four southwestern tribes ? Will it be said, that the contemplated Indian community will have been first established, and received its guaranty, and that therefore Congress cannot inclose the Indians in a new State ? Let it be remem- bered, that the Creeks and Cherokees received their guaranty aoout thirty years before the Stole of Alabama came bto existence; and yet ^.y«r-»a^TT k 100 that 8ute claims the Inditni within iti chartered limita, aa being under its proper iuriMiiction; nnd ho. already begun to enforce the ciajm. L#t not the government trifle wi« f '^l^nc' enouflh, that no benevolent treatment can save them, and it will be aaid thev mny as weil be driven beyond the Rocky Mountains at once. U they live comfortably, it will prove, that five times as many white people might live comfortably in their places. Twenty-five years hence, there will probably be 4,000,000 of our population west of the Missia- aippi, and fifty years hence not h« than 1 5,000,000 By that time, the pJeaaure upon the Indians will be much greater from the bo»ndleM prairi'-s, which must ultimately be subdued and inhabited, than it would ever have been from the borders of the present Cherokee country. 1 1 If existing treaties are not observed, the Indiana can have no confidence in the United States. They will consider themselves aa paupera and mendicants, reduced to that condition by acts of grosa op- pression, and then taken by the government, and stov.jd away in a crowded workhouse. , . . . . . u- «f Tn 12. The moment a treaty for removal is signed by any tribe ot In- dians, on the basis of the contemplated plan, that moment such tribe la denalimalized ; for the essence of (he plan is, that all the tribes shall come under one government, which is to be administered by wliitea. There will be no party to complain, even if the pretended treaty shoiild be totally disregarded. A dead and mournful silence will reign ; lor the Indian communities will have been blotted out forever. Individuala will remain to feel that they are vassals, and to sink unheeded to de- spondency, despair, and extinction. .„ ^ . ,. * ku«« But the memory of these transactions will not be forgotten. A bitter roll will be unfolded, on which Mourning, Lamentation, and Woe, to tM people of the United StaUa will be seen written in characters, wbicli no eye can refuse to see. » . „ , . »<• _.u— Government has arrived at the bank of the Rubicon. " oiir ruiera now stop, they may save the country from the charge of bad faitn. ii ■ Uiey proceed, it will be known by all men, that in a plain case, without ■ny plaasible plea of necessity, and for very weak and unsatisfactory Sns, the great and boasting Republic of the -United States of Nor h America, incurred the guiU of violating treaties; and *hatthi» guilt was incurrwl when the subject waa fairly before the eyes of the Amen- ..itfiiXH^'^iii "«!»r 101 , ai b«ing und«r force the cinini. If the Indiana nc, tliat they are inn bad terma with the emigrants be- will be evidence and it will be aaid itains at once. If B« as many white ly-five years hence, west of the Missia- By that time, the rom the boundleaa ited, than it would okpe country, dians can have no der themselves na y acts of gross op- stor^-'d away in a by any tribe of In- jment such tribe ia all the tribes shall nistered by whites, ended treaty should nee will reign ; for irever. Individuals ik unheeded to de- brgotlen. A bitter on, and Woe, to the haracters, wbicb no icon. If our rulera ge of bad faith. H plain case, without and unsatisfactory ited States of North and that thia guilt I eyei of the Ameri- can community, and had attracted more attention than a.iy other public measure lince the close uf the last war. In one of the sublimust portions of Divine Revelation, the following words are written : Curted Im he, that remoeeth hit neighbour's landmark : and all the people thall aay. Amen. Curted he he, that makelh the blind to wander out of the way ; and dU the people ^nall tay, Amen. Curted be he that pereerteth the judgment of the ttranger, fatherlett, and widow ; and all the people thall tay. Amen. Is it possible that our national rulers shall be willing to expo^o them- selves and their country to these curses of Almighty God ? CursCk ut- tered to a people, in circumstances not altogether unlike our own ? Cursea reduced to writing by the inspired lawgiver, for the terror and warning of all nations, and receiving the united and hearty Amen of all people, to whom they have been made known ? It ia now proposed to rfmore (he landmarkt, in every aense ;— to die- regard territorial boundaries, definilely fixed, and for many years re- spected ;— io disregard a most obvious principle of natural justice, in accordance with which the possessor of property is to hold it, till some one claims it, who has a' better right ;— to forget the doctrine of the law of nations, that engagements with dependent allieit arc as rigidly to be observed, as stipulations between communities of equal power and sovereignty ; — to shut our ears to the voice of our own tages of the law, who say, that Indians have a right to retain potaettion of their land, and to uae it according to their ditcretion, antecedently to any positive com- pacU ; and, finally, to dishonor Washington, the Father of hia country, — to stultify the Senate of the United States during a period of thirty- aeven years, — to burn 150 documents, as yet preserved in the archives of State, under the denomination of treaties with Indians, and to tear out sheets from every volume of our national statute-book and scatter them to the winds. Nothing of this kind has ever yet been done, certainly not on a large scale, by Anglo-Americans. To us, as a nation, it will be a new thing under the sun. Wo have never yet acted upon the principle of seizing the lands of peaceable Indians, and compelling them to remove. We have never yet declared treaties with them to be mere waato paper. Let it be taken for granted, then, that law will preeail. " Of law," says the judicious Hooker, in strains which have been admired for their beauty and eloquence ever since they were written, — " Of law there can be no less acknowledged, than that her seat is the bosom of God ; her voice the harmony of the world. All things in heaven and earth do her homage ; the very least as feeling her care, and the greatest as not ex- empted from her power. Both angels and men, and creatures of what condition soever, each in different sort and order, yet all with uniform consent, admiring her as the mother of tlieir peace and joy." 'i ■ I APPENDIX. THE BCCRETARY OF WAR TO THE CHEROKEE DELEOATrON. DurAHiitHT Of VV*ii, AniL 10, 18W. To Mettra. John Rot; Richard Taylor, Edvard Gunter, and WUliam S. Coodt/, Cherokee Delegation. FiiUNDi »«o B.oTnrmt : Your lottfr of tha I7lli of Febtuir>-, addrewed to the l4te 8«cr.Ury of W.r. hw b«.n bro.iRht to the i.olico of thi. department, .inc. tha corarauniction made to you on lh« tUh in.t. ; and ha»mn coRV.r.ed fredf •nd full» with the Pr«.ident of tha United State., I am directed b/ h.m to submit the following a. tlie view, which are entertained, in reference to the .ubjecU which Tou have aubmitted for con.idoration. . ,, /..l i ni.. ir«i You .tftte that " the L«((-.lature of Georgia, in defiance of the law. ?f'.h« Uni- ted SUt.., and th.mo.t Solemn treatie, exi.li.ur." have "«''"f'»> " J""*^'^^°" o' er your nation, to take effect in June ISaO. That "jour nation had no t^^* in th/ formation of the confederacy of tho Union, "V'oiTn'.-'rd^hSconi- with the lawo of individual Slate, becau.o independent of thcin : end that conee- Tuently thi. act of Georgia i. to bo viewed "in no other l.ghtthan a wanton u.ur- Ja^^in of power, guaranteed to no Slate, neither by tha common law of tha land, " Tol.Uhi'.7h•.^^?^Sain and obviou. an.war, daducibl. from tha known hi- tory of the country. During tha war of the Revolution, your Nation wa. tha fHeU and ally of Great Britain ; a power which then claimed entire »"ver.ignty StSfn the IL of what con.tituted the thir.cen United Slate, fy »''. Decla- ration of Independence, and, .ub.enuently, the treaty of l.W, *». '^e riRht. or aoveroienty pertaining to (Jrcat Brit.in became ve.ted rwpectively in the original 8tauSrtL'\jnion,?nclud.n. North Carolina and Georgia w.thm who., um- torial limit., a. defined and known, your nation wa. then .itualed. If, a. i. the c« yoThave been permitted to abide on your own land, from that period to th. ir«;nt%nioying the right of .oil and privilege to hunt, it .. not Ih'nce to bo in- Ferred, Iha^ tl. wa. any thing more than a pern.i».on K'''^'^ °"« f^^°X ,^, with your nation ; nor i. it a circumstance whence now to deny to thoaa State, the exerci.8 of their original Mtereignly. „f ,k. Ri.t... which com- In tha year na5, three year, after the Fndepand-nca of tha SUta., «»'"=" «°"^ poM thi. Union, hid been acknowledged by Great B^l*!;:' ' «"» ^ V. llnEa wa. concluded with your nation by the United Slate.. The emphatic »»ng"»8« U"onrn.clot b^ mistaken, -mmencing a. follow. :-" The comm^^^^^^^ plenipotenrury of the United State, in Congre.. f»«'.'«'''*^-' R';« .ffi Stiu. of Cherokee., and receive them into favour and protection of tha Unitad B**"' »' AmericL'^ II proceed, then lo allot and define your lira.U and yo" hunting JrouX You were secured in tha privilege of pursuing the game, •"dfrom 'n- froachment. by the whites. No light, however, .ave a mere P°^««%°f ';*,' by tho provi.ion. of the treaty of Hopewell, conceded to your "»t'°"^,^'';bided and the uw of it were .uffered to remain with you, while the •?'«"'P'*y »°'^?r precUely where it did before, in tho.e State, within who.a hmiU you war. itt- "Sttb-Hiuaiit to thU, your paopla war. at enmity with tha United Stata^ and w^dTwM u^n our frontier .etU.monU ; a durabl. paaea wm not anU/.d into _i : DELEOATrON. R, AraiL II), 1839. inter, and William iitry, addreued to the liii department, lince *in(( coRveraed frecljr ;ted bjT him to submit ) to the aubjecta which fthelawa ofthe Uni- ntended a juriadiction ir nation had no Toic« ever been unahacUled hcin :" end that conae- lit than a wanton uiur- mmon law of the land, » from the known hia- your Nation was the mod entire sovereignty Jtatos. By the Decla- l"B3, all the riRhts of pectively in the original [ia, within whose terri- I situated. If, aa is the from that period to the t is not thence to bo in- swing out of compact! to deny to thoae States the States, which com- in, atrcaty at Hopewell The emphatic language »» The cominisaioners ed, give peace to all the of the United SUtes of miU and your hunting the game, and from en- nere possessory one, is, your nation. The soil, ( the Bovereignty abided )se limiu you were eit- 1 the United States, and lace WM not ente/ed into 103 with you until 1701- At that period a good understanding obtained, hostilitiee eeaaetJ, and >>y the treaty made and concluded, your nation was plai-ed undrr the protarttnn ol" our Oovernment. and a iruaranty ifiven, lavoursble to the orrupancf and posufiision of your country. Hut the United Htalrs, always mindful of the authority ofthe Stati'i, even when treating for what was so much d«»ired, peace with their rod brothers, forbore to offer a guaranty alverse to the sovereignty of Oeorgia. They could not do so ; they had not the pover. At a more recent period, to wit, in IIMW, the Htate of (Jeorgia, defining her own proper limits, ceded to the United Htatcs all her wextern territory upon a condi- tion, which wasarceptcd, " that the United Mtates shall, at their own espcnse, eX' tinguish for the um of Ucnrgia, aa early as the same ran be peaceably obtained on reason«ble term*, the iiulian title to all the lutids within ihe Ktato of Oecrt;m." She did not p«k the military arm of the (fovornincnt to be employed, b tin her mildnossan ' rbearance, only, that the soil norwards concluded. These things h». J been made known to you frankly and afier the most friendly manoar j and particularly at the making ofthe treaty with your nation in 1017, when a porticn of your people stipulated to remove to the west ofthe Mississippi ; and yet it is alleged, in your cominuuication to this department, (hat you have " been unsliackled witn the laws of individual HUles, becauso independent of Uiem." The course you have pursued of establishing an independent, substantive go- verument within the territorial limits ofthe Htate of Georgio, adverse to her will and contrary to her consent, has been the immodiate cause, which has induced her to depart from the forbearance sho his so longpracUsed ; and in virluo of her au- thority, as a sovereign, independent Slate, to ejileiiU over your country her legis- lative enactments, which she and every state embraced in the confedertcy, from I78J to the present time, when tlioir independence was acknowledged and admit- ted, possessed the power to do, apart from any authority, or opposing interfer- ence by the General Government. But suppose, and it ia suggested merely for the purpose of awakening your bet- ter judgment, that Georgia cannot, and ought not, to claim the exorcise of such power—what alternative ia then presented ? In reply, allow me to call your at- tention fo:- a moment to the grave character ofthe course which, under a mista- ken view of your own rights, you desire this government to adopt. It is no lese than an in- itation that sho shall step forward to arrest the constitutional acts of an independent State, exercised within her own limits. Should this be done, and Georgia persist in Iho maintenance of her rights and he; authority, the conse- quences might be that the act would prove injurious to us, and, in all probability, ruinous to you. The sword might be looked to as the arbiter in such an inter- ference.— But this can never bo done. The President cannot and will not beguile you with auch an expeotation. The armo of this country can never be employed to sUy any State of this Union from the exercise of those legiiimatp powers, which atUch and belong to their aovereign charecter. An interference to the extent of affording yo'i protection, and the occupancy of your soil, is what ia de- manded ofthe justice of this country, and will not be withheld ; yet in doing this, the right of permitting to you the enjoyment of a separate Government within the hmiu of a State, and of denying the exercise of sovereignty to that Sn, ho failed not to roin residing within } has heretofore em- it that course which ill be found to sanc- itter, thure is but a lich Georgia claims, ^movo, and by asso- again united ap one re situated, it will be ing thus brought to- d from very many of are without remedy, xercise over them ft stay encroachmenti, rhile, with the aid of refinement will take Indian characier, the '.ation. )r consideration, it ia dy been advised, and Lces, directing him to matter, all cause for With great respect, IN H. EATON. LESS. fthoCongresi of the ent of Lord Chatham, ill our rulers and our ilcdges which were gi- itty's penl ? e for Indian affairs do engaging the continu- unhappy dispute with I of the report of the ugh, was agreed to, as Indian nations appear 105 " That there is too much reason to apprebord that administration [that is, the British government,] will spare no means to cscito the several nations of In- dians to tako up arms against thcao colonics; and that it becomes us to bo very active and vigilant in exerting every prudent moans to strengthen and confirm the friendly disposition towards these colonies, which has long prevailed among the norlhern tribes, and which has lately been manifested by some of those to the southward." •.,,.• , • ^ That the commissioners have power to treat with the Indians, ni their re- •pective departments, in the name and on behalf of the united coloi.ies,in order to preserve peace and friendship with the said Indians, and to prevent their tak- ing any part in the present commotions." , , ... /f» Congreit, July 1.3, 1775, " Ordered, That a talk bo prepared for tho Indian mtions, so as to sait the Indiana in the several departments." lnCor^teii,iiej)l. 14, l'7ij, »» The commissioners for Indian affairs, in the nothcrn department, Uansinitted to the congress the minutes of a treaty, held with the Six Nations, at Albany, in August." In Congreu, Feb. 5, 1776, Resolved, That a friendly commerce between the people of the united colonies and tho Indians, and the propagation of the gospel, and the cultivation of the civil arts among the latter, may produce many and inestimable advantages to both: and that tho commissionp-a for Indian affaire be desired to consider of proper places, in their respective departments, for the raaidence of ministers and schoolmasters, and feport the eame to Congrose." In Congreu, Mareh^, 1776, » Retolved, That Indians be not employed assol- diera in the armies of the united colonies, before the tribes to which thoy belong ahall, in a national counoiI,held in the customary manner, have consented there- unto, nor then, without express approbation of Congress." • tnCongrest, April 10, VnQ,"-Rttolved, That the commissioners for Indian affair^n the middle depar ment, or any one of them, be desired to employ, for reaeonable salaries, a minister of the gospel, to reside among the Delaware Indians, and instruct them in tho Christian religion; a schoolmaster to teach their youth i-eadin^, writing, and arithmetic ; also a blacksmith to do tho work ofthe Indians in the middle department." „ , ,. In Congru*,May,i\, ma,'' Resolved, That the standing committee for Indian affairs bo directed to take measures for carrying into execution the resolution of the 6th, for holding a treaty with the Indians in the different departmenU, at soon as praeticablo." . ^ ■, j,- in Congreu, May 27, 1776, " Resolved, That the standing commitUe for Indian affair*, be directed to prepare a speech to be delivered to the Indiana, and to procare such articles aa they judge proper for a present." ^ • .^ .. In Congress, Sepl. 19, 1776, ''Resolved, That it be recommended to the inhabi- tanU of the frontiew,and to the officers at all the posts there, to treat the Indiana who behave peaceably and inoflTensively, with kindness and civility, and not to eufffer them to be ill u«^J or insulted." » As it may be a means of conciliating the friendship of the Canadian Indians, or at least of preventing hostilities from them, in some measuft to assist the President ol Dartmouth college, in New Hampshire, in maintaining their youth, who are now there under his tuition, and whom tho revenues ofthe college are not, at thi« time, sufficient to support; that for this purpose, five hundred dol- lars be paid to the Rev. Dr. Eleeiar Wheelock, President of the said college/' /rt Congress, Ocl. 20, 1777, "Resolved, That it be earnestly lecoaimended to the president and assembly ofthe State of Georgia, to use their utmost exertions to cultivate peace and harmony with th» Indian nations; and to enable them to effect this salutary purpose, that they forthwith enact laws, inflicting severe penalties on such of their inhabitanta as may endeavour to provoke a war, which may endanger tho sUte of Georgia, and entail freat injury and expense on tha United States." ,_ ^ ^ In Congress, Feb. 2, 1778, " Resohed, That the comraissioneni speak and act ia such manner m they shall think most likely to obtain the friendship, or at leaat, the neutrality ofthe Indians, and that Congress will support the commis- ■ioners in any meas-jres they shall conceive best calculated to answer these ends." In Cmgrus, May 17, 1779, " Resolved, That the commissioners for Indian affairs in the northern department, be directed to consult Goniral Washington 14 V, ..iaaMiMc£U»M»>d>i« / im •f^ upon all tfOBties with the Indian«,and to govern themwlveg by iuch initractions, as ho shall give thorn, relative to any partial or general treaty of peace Is. b« concluded with them." [It would seem that tho Old Congress wos so simple as really to believe, that General Washington had understanding sufiicient to enable him to decide what was a treaty and what was not;] In Congres; Feb. 21, 17«0, » Reiolved, That the commissioners of Indian af- fairs in the noithcrn department, bo authorized and instructed to take such se- curities from tlio hostile tribes of Indians, to ensure the faithful performonce of their engogements with tho said commissioners, as seem most conducive to the end proi'OHcd, in lieu of hostoges." ... In Con^n$$, Oct. 15, 1783, " Resolved, That a convention be held with the Indians residing in the northern and middle departmenU, who have taken up arms against the United States, for tho purposes of receiving them into th« fa- vour and protection of the United States, and of establishing boundary linea of property, for separating and dividing tho settlements of the citizens from the Indian villages and hunting grounds, and thereby extinguishing, as far oa possi- ble, all occasion for future animosities, disquiet, and contention." In Congresi, July 15, 1788, » Whereas it is represented to congress, by the delegates of the SUte o£ Georgia, thatthe principal parts of the frontiers ofthat State have been for several year^past invaded, and kept in a state of alarm by the Creek Indians; that the fighting men ofthat nation, supposed to amount to not less than six thousand, have been so far instigated by refugees and fugitive traders, who had formerly escaped from these States and taken refuge among them, as to keep up constant and bloody incursions on the different parts ofthat frontier, and that the settlements of fov- of the exterior counties are almost en- tirely broken up: "/^Mo/ued, lliatthesuperintendantand commisBionen for the louthem de- partment be instructed, if tlioy shall find it necessary, to notify to tho said In- dians, tlMit should they persist in refusing to enter into a treaty upon reasonable terms, the arras of the United States shall be called forth for the protection of tliat frontier." , , _, In Congrett, Sept. 1, 1788, "Whereas the United States in congress aasembletl by their commissions duly appointed and ruthorized, did, on the twenty-eighth day of November, one thousand seven hundred and eighty-five, at Hopewell, on the Keowee, conclude articles of a treaty with all the Cherokeet, and among other things stipulated and engaged by article fourth, ' that the boundary al- lotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of tho United States, within the limits of the United States of America, is and shall be the following, viz : [The boundaries are here inserted]. And whereas it has been represented to congress, that several disorderly persons settled on the frontiers of North Carolina, in the vicinity of Chota, have, in open violation of the said treaty, made intrusions upon the s»id Indian hunting grounds, and committed many unprovoked outrages upon the said Cherokees, who, by the said treaty, have put themselves under the protection of the United States, which t>roceedings are highly injurious and disrespectful to the authority of the Union, and it being the firm determination of congress to protect the said Cherokees in their rights, according to the true intent and morning of tho said treaty; the U. S. in congress asserablr. have therefore thought fit to issue, and they do hereby ip«ue, this their proclamation, strictly forbidding all such un- warrantable intrusions, and hostile proceedings against the said Cherokees ; and enjoining all those who have settled upon the said hunting grounds of the said Cherokees, to depart, with their familial and effecte, without loss of time, as tBey shall answer their disobedience to the injunctions and prohibitions ex- pressed in this resolution at their peril : " He/olvtd, That tlie Secretary of War be, and he is hereby directed, to have a sufficient number of the troops in the service of the United Stales, ia readiness to march from the Ohio, to th? protection of the Cherokees, whenever congress -hall direct the same ; and that he take measures fti obtaining information of he best routes for troops to marcii from the Ohio lO ClioU ; and for dispersing among all the white inhabitants settled upon, or ij. tiie vicinity of the hunting grounds secured to the Cherokees, by the t-eaty concluded between them and the United SUtes, Nov. «8, 1785, the proclamation of congresa of this date. by (uch initrucUotif, reaty of peace tu b« tgreas wai lo litnple tending sufficient to slonera of Indian af- :ted to take such k- thful performance of loit conducive to the on be held with the who have taken up ng them into th« fa- ng boundary lines of lie citizens from the Bhing, as far as posti- lion." to congress, by the if the frontiers ofthat u a state of alarm by ipposed to amount to refugees and fugitive taker, refuge among liSerent parts ofthat lunties are almost en- for the southern de- notify to the said In- reaty upon reasonable for the protection of in congress assemble^ on the twenty-eighth r-five,at Hopewell, on herokeeb, and among hat the boundary al- the said Indians and he United States of ries are here inserted], eral disorderly persons ily of Chota, have, in le s»id Indian hunting in the said Cherokees, 'Otection of the United pectful to the authority ress to protect the said id merning of the said lought fit to issue, and irbidding all such un- le said Cherokees ; and ng grounds of the said Ithout loss of time, as s and prohibitions ex- ereby directed,- to have ted States, ia readiness ces, whenever congress btainiug information of Ota ; and for dispersing vicinity of the hunting [ded between them and >ngress of this date." 107 The foregoing proclamation and resolution are, in the highest degree, honor- able to the congress of the United Slates. Measures of a directly opposite character must therefore be hii^hly dishonorable. A similar proelamaliou, fol- lowed by a corresponding order from the war department, would now afford a perfoct shield to the Cherokees. A» EXAMINATION or^^lo^.f ^P/to^H™"""" ''"' *'"'°- fee, was only a consequence of the habit, wnicn ai» pi«|o cordance with their origmal meaning. , . „f .i.o nninlon delivered That such is the scope of the two last paragraphs of the 0P.""°"' °^";;7" by cSnustlce Marshall, will be evident ona moment's reflection. The para- miffht not be construed to amount to a decision that meir gronii-u . e Uin an ejectment for thorn, notwithstanding that title. and confessed an apPfehension, that the decision migii ^^^ that the individuals, to whom the state had granted its ''S"'' ';"'"_,„. -Uould W from the Indilns, bv a wrU of ejc^--^^ ^^v" rcCtTffectaliJ -iil'StSi/iiSffiSiriiKnot.in ^^^^^zz Whenever it shall be extingn.shed, »l will be « ^ «Jf^i'^^7ho j *^ constitution and laws of the UnUed State., »"f„»f.Vea«rof Fletcher and Peck, That this is a fair account of the "J^^'"";;" 'j!,nppeaVs to us perfectly so far as relates to the quesUop now before the oubhc. appears i p ^^^^^j^ clear. But if we have mistaken the ri^eaning of /°« ^^"^^j ^c orily stated, open to conviction, whenever that meaning shall ^* ""'/."j^bLL their In the mean time, let those ,vho "« »l?""!ff°y!^,'Je eo^^^^^^^ title to their country is " on/i( the f^'^. "/.^""^-'^^ TJupy the lands of reflection, that, by virtue of this right, ^^^ J^^erokees may ocrt^py,^ ^^^^^ their fathers till the end of the world, «nle« they •»!;» vo"^« of occupancy lands to the United States, for the use of Georgia. Their rigni oi mr 108 raaehei back to tim« b«yond th« memory of man. Thif is et good aUUe, in its own nature. a> any titlo thnt can bo conceived. Illack.tone says, " It i« agreed on all handa, that occupancy jravo the original titlo to the permanent proj-erty in the .ubetance of the earth itsolf, which exclude, every one eiao but the owner from tha use of it." And the right to ornii>!/ Iheir country frrevtr haa been aoleinn- ly and repeatedly guaranteed to the Chcrokces.by tho highest aulhontiea of our "M*is said they have on/v the title of occupancy, because they cannot sell their land*, oicopt to tho United States, and in a prescribed manner. Nor can they aivo iway their lands, except to tho Unitc.l States. Their rights are restrained in reffiird to tho eale, or cession, of lands, for two good reasons. 1. They have iolemnly agreed with iU United States, that they will not sell, or cede their lands, except as above mentioned. This was a fair stipulation, which they had full power to make, and which was intended to be, and actually is, for their benefit 2 The United States have forbidden the whites to purchase ot the Indians, which the United Slates had a perfect right to do, and which was done Ibr the protection of the Indians. Foreign nations ore, of course, excluded trom passing our national boundaries; and all the large tribes of Indians have cove- nanted not to form -ay connexion with foreigners, which shall be inconsiatent with living under the protection of the United States. In the case of Johnson and M'Intoah, which waa decided in 1 823, the Supreme Court thus ezpresaad itself: — "It hoB never been doubted that either tho United States or the several Statea had a clear titlo to all the lands within tho boundary lines described m the treat]/, fof 17831 tubject only to the Indian right of uecupanei/, and that the exclusive power to extinguish that right waa vested in that government which might con- •titutionally exercise it."— 8 Wheaton'i Report*, p. 585. Tho question, in tho case of Johnson and M'Intosh, wis, whether granU of land in the wilderness, which ia now tho state of Illinois, made to pnvate pur- ehasers, citizens of Virginia, in the years 1773 and 1775, by chiefs of the Illinou and Piankeahaw tribes of Indians, aro good and valid grants, binding on the courts of the United States. The court decided, that such grants were not Talid : and, in the course of tho decision, went somewhat at length into the con- •ideraUon of Indian title. We can confidently declare it aa our opinion, that, in this very elaborate and candid discussion, tho Court advanced nothing which haa an unfavourable bearing upon tho claims of the Cherokees. The Court said, indec il,tUat " the United States, or the several states, have a clear title to all the lands within our national '.iinita." What the Court meant by a « clear tiUe," is abundantly explained to be the exclusive right of acquiring the Indian lands. European nations, the colonics of Europeans, and the inde- pendent states of North America, have all claimed that the government, to the exclusion of private purchasers, has the right of acquiring tho possession ot Indian territory ; and that foreign nations could not intrude upon the discoveriea of each other rcspcctivnly. These principles have been so constantly asserted by all the govcriinionts above mentioned, that they havi- become principles ot established law ; and the Court is bound by thom, and cmnotgo into tho con- aideration of the principles ot abstract justice. That v *» we all know, it la tho duty of the Court to doclaro what tho law is, an; <., ly "t— not to mafcc the law The » clear titlo," then, which the government has to Indian lands, comprises, first, the power of excluding foreign nations froni intruding upon these lands; secondly, the power of forbidding private men from purchasing them; and thirdly, since tho adoption of the federal constitution, tne exclusive power of the general government to extinguish Indian title by treaty. AU these claims of the government have been admitted by the Cherokees, CreeKs, Chickaaaws, and Chocttws, in the various treaties now in force. The Indians make no complaint, in regard to these claima. Though their natural righte are circumscribed in this manner, yet thev very well know it is for their bonefit; and they would be the first to desiro, that their conimunitias might be deJenueo from the intrigues of foreign nations, and the frauds of private apeculatow. They would no more think of complaining that tlieir natural rights are limited, \ B» good a title, in its I BUJB, " It ia agruad permanent proi^erty le elio but the owner evtr haR been lolenin- est aulfaoritiei of our hoy cannot eell their nner. Nor can they rights are restrained !ons. 1. They have at sell, or cede their tion, which they had actually is, for their 8 to purchase of the and which was done ;our8e, excluded from f Indians have cove- shall be inconsistent in 1823, the Supreme I or the several States leacribed in the //«a(y, d that the exclusive ent which might coti- \8, whether granU of mado to private pur- y chiefs of the Illinois rants, binding on the such grants were not U length into the con- . as our opinion, that, ranced nothing which ikees. several states, have a 'hat the Court meant lire right of acquiring opeans, and the inde- he government, to the ring the possession of Ic upon the discoveries 10 constantly asserted . become principles of innotgo into the con- Ks we all know, it is I Jy >.t — not to make [i has to Indian lands, ■ from intruding upon men from purcnasing titution, the exclusive title by treaty. All he Cherokees, Creeks, n force. The Indians ;hcir natural rights are it is for their bnnefit; lies might be defended f private speculators, ural rights are limited. 109 of the uSfted Slate, was .ubject to the Indian r.ghiof oca,pancy. What .. Jh^rrk^^cZtr^^ctUrnfn/'whTro itty of cession his been made, are "we S:K'o more quotations from the opinion of the Court, in the ca«. of ^•'llThrl^'e'/ret contended, that the In^an tUle a-ounted »» "t^„^: ^^l^tt'Kt^e^^ right of the Indians to rota n their P^f?"?^'""' ,,-Vtioned richt of possession ; ;r.'rar;i f SElr r»'"^ e-'-- . wise diminished or affected, by the !>''^''" °;. \7/.7';' ':. u.g usually been call- I ^l ■ 110 t Indian title of occupancy] !■ no more Incompatible with a leuin in fee, than a leaie for year* ;». and might as effectually bar an ejectment." p. 592. f 'ommon readers, not being acquainted with legal terme, cannot take the force of thi. quotation. Let u« explain it. If Mr. Prime holde a house m Wall-etreet to himself and hia heiri for ever, iie it eaid to be aeieed in lee of that house. He may malte a leoie of the house, for a valuable •onsidcration. to the corporation of thS Merchants' Exchange, for the term of a thousand years, and the corporation may take po.^s.s.on : still Mr. Pnmo .. sewed m fee of the house, and has the ultimate title to bim and his heirs. TBe lease of he house fora thouHand years may bo worth |100,000; and Mr. Prime's "ulU- mate title" which is to be enjoyed by hirheirs a thousand years hence, would not probably sell at auction for enough to pay a lawyer for making a ""'now the Court, in effect, say. reverting to the doctrine laid down in the case of Fletcher and Peck, " The decision that the right of pre-emption, which the United States are to exercise for the use of Georgia, may be technically called a lewin in he, no more proves that Georgia may take possession of the Cherokee country and drive out the natives, or that the grantees of Georgia mav brine a suit of ejectment against the Indians, and thus got possession, Ihtn the fact that Mr. Prime is seised in fe« of a house in Wall-street would . Drove that he might bring an ejectment against- the corporation of the Mer- chanU' Exchange, when he had himself put the said corporation in possewion of the premises, by a lease for a thousand years." The Cherokoes might " as effectually bar an ejectment," to use the very words of the Court, by pleading that possession, to which they have a /egoUnd ,^/ claim, as, in the case supposed, the Merchants' Exchange could resist the suit of Mr. Prime, by pleading his owi. 'ease fcr a thousand years. it i. nl ural that people sTiould mistake in regard to the decision of the Court, by the mere .Ln4 oHhe Kords nud, that i-, by taking the popular mean- W of words, rather than the legal and technical meaning.' Thus, for instance, he "undoubted title" and the " ultimate title" of an acre of land bordering on Wall-street, might not be worth five cents; because it might be charged of incumbered, with " i: legislature, or have they an* concern, ae jurora or magistrates, in the adm..-:'.tration ot ju«- Uce? Are they, on the other hand, charged with the duties and burthene of ciUxens? Do they pay taxes, or serve in the militia, or are they required to take a share in any of the deUils of our local institutions? Do we interfere Ill Muin in fee, thin a ,." p. 592. ni, cannot take the e holds a house in I be leiaed in fee of luable aoniidoration, term of a thousand 'rime if seized in fee I. TBe lease of the I Mr. Prime's " ulti- lusand years hence, awyor for making a le laid down in the f pre-emption, which , may be technicallj ce possession of the grantees of Georgia thus got possession. Wall-street, would, oration of the Mer- oration in possession it," to use the very they have a legal and ingo could resist the d years. the decision 4>f the ng the popular raean- r " Thus, for instance, :ro of land bordering might be charged of :ortain period, . which But as to any mis- legal decisions, it ii used. > say any thing about ime before the Court, ry other Court in the constitution itself. — ELLOR KENT, IN ion'* R^porU, vol. xx. York. X 1 ''one of Indians, the coQnsel, who con- nd become completely I bound to all the du- event took place. I the requisite eviBence mat this day, allow nd political privilegea' is: c'l: legislature, or adml^'i'tration of ju«- uties and burthens of r are they required to [IB? Do we interfere ?:SIte.^esta r Do orsi^ faws.our ^hool laws, our poor law. our laws co"cerJing infant, and apprentices, or concerning .d.ots, lunatics, orhabi- tuirdrunk«d"faJplytothenr? Arotl.e, subiect to our »»7' °^'''r'*7" ^ tSeUnUedsSe^^against high treason; and .fo we treat »««! pun.sh them M Iraitors insUkd of public enemies, when they make war upon us? Are they Sect tHur laws of marriage and divorce, and would we »"»\7 » """'°f, suDjeci lu uut k;,._,» if »W.f should chanKo their wives or husbands, at their LToTasurl ailSuing C heTr o^^^^ citoms, and conUact new matrimo- ^a^tcrs^ I app'ehe'"fthatevery one of these questions mu^^ "d In tie negativetand that on allthe'se peinU they are regarded as dependant alUes, and alien commuuities." pp. 709, 710. "Inmvviewofthe subiect, they have never been regarded m citizens or V "U^^irK^Ho nolitic within the contemplation of the constitution. ?hS'Cealwaysfinf and are Si considered by our laws as dependent tribe. loveCd by S own "age. and chiefs, but placed -'»".°3°^f '»rf' fubjwt to our coercion, .o far a. the public saMy required it, and no farther. p. flO. Indiana alvaayt conndered aa aeparaU commmitiea. " Through the whole «,rie. of our colonial history, thes.^ Indian, were con- .ideredM dependent allies, who advance for themselves the proud chum of free nations, but who had voluntarily, and upon honourable terms, placed thera- Sve. and tho"r lands under the protection of the Britaih govor^iment The rinial aulhoriUes uniformly negotiated with them, and made and ob.evod treaties with them, as sovereign communities, exercising the right o lioe aeiiue- Sn a^i aVtlonTbut. in confideraUon of proUction, o^-^l^^^l^^fj-^i^- tion in a natioMl, but not in any individual capacity, to the British crown. "No Sent can bo drawn against the sovereignty of these Indian nations from the fact of their having put themselves and their lands under British pro- Son Such a fait uTof frequent occurrence in the transactions between in- 'TSircommtuy may be bound to another by a very -enual alliance and .ti'lbeasovereiffnstate. Though a weak state, in order to provide for ita Siit^, Zuldpface itself under the protection of a more powerfu^ one, yet ac- !!r,^iV,\r V„ VnttRl CB 1 ch 1 e. 5. and 6.) f it reserves to lUelf the right ot Totrgite ot-^^^^^^ belsidered as - 'ndep-den» "fsO l-here are several kinds of submission, says t^is same jurist. (B. I- ';»'• 6- «• ^^^O The submission may leave the inferior nation a parl of the «ov!=;; g"^/;;^'- traininir it only in certain respects, or it may tot^ly abolish it, or the lesser may be nco^rporate^d with the greater power, so as to form one single "tate, in which all the ciUzens will have equal privileges. Now, it is very ^PP"«"\' f"-"™ ^^/^ whole history, that the submission of the six nations has ^een of the former Jnd,and that as an inferior nation, they were ""'y rf»«:°t^°; \te Indians eiirntv in certain respects. Though born within our territorial limits, the Indians XoVsXed L bo?n under thf dominion df their tribes. They are not our .ubjects. bom within the purview of tho kw,1,ecause hey "^"/"t ^J" '^ "i^; dience to u. They belong, by birth, to their own tribe., and these tribes are tZTi under our Jrote^tioi, and de'pendent upon us ; but sUU we recognize th^m a. national communitiw. In this situation we stood ,n relaUon to each other at the commencement of our revolu' ^n. . . ^. . *.„„„.♦ i??/;* » The American Congress held a treaty with the six nations in Aug"'*' 'JJ^' in the name, and on beLlfof the United Colonies, and a convention of neu- SaUty was made between them. ' This is a f^iily quarrel between us and old Englind.' said the agents, in the name of the colonies; ' y°". I"'''^"" "^:?f, concerned in it. We desire you to remain at home, ard not join e'tiM side^ Again, in 1776, Congress tendered protection and friendship to the Indians, mo l^olved, that no Indians should be employed as soldiers m »'»,''."'»'°«„ °l ""^ United States, before the tribe, to which they belonged, should, in a ndtiona council, have contented thereunto, nor then, without the exprew approbaUon ot ^ I ■s ( : •taalM .^--«- 111 an. . — .- «f •pnTsrninant could more clearly and ttrongly dMig- J:r.1c ,„Ta'„Vrto";I. J^aSr fv'o™ oar bodi.. pJutic. and a. .apara., and independent communUiei ? Senocas. who had "In 1778. C"ngre«re.olved, that they wo^^^^^^ ^^^ ^^^^ ^^^^^^ joined the enemy, '"V" JhiWeU.luaThcy dTr^tod 5,e board of war to in- ISeneca chief, appeared at ' ^'l^delplua, incy amboasador. of ,„i« whether th-X Xu"n'r77t Sre« h^S^^^^^ «ern,. of pcuce their nation? And when, in i < '"''^""8 |j j^ dicUtod to a public with the Indian., the ^"'"t'^ * f Var ". y had not .he reinotct resem- enemy, known a. .uch by '^e '■'W- »/ T^' ^ *^^^^ „, .ubjecu. who had Mance to the term, or .pint ''(''^'^^'^^^ ^^l^^^^y waived the right of con- rotate, and J^o ^ ^/rj^^iniuoriLo hid bS n ho.Ulo. and received therr. gave p«r.co to tho.e of the .«"' "fi'""! J^ ":,. t,ibe« .hould .tipulatc, that the Snder p. lection, and «1«'r«^',J'^^' '/.S' f, h« po o»i™ « '^hcir land-. ^ Oneida., and Tu.carora., .hould bo »f ""';'" '"jjP „„ tj.^ part of the United "There wa. nothing, th.m, in any act or proM^^^^^^ ^^^^ ,^ ^^ Bute., daring thV«7'"''T.JrTtC«Aat"on. and conJolidato them with -s'S/;;r :%-ST.r/?.7rT.™ p-ru;. ,u ..«- ^.r.-. the war." pp. 711— 713. . „,_ _-j- hetwcon the United Statee and the " In 1794, there wa. »n°the' treaty mriebetwMntM ^^^^^^^ ^^^ .i, natiomi, in which ?"?«'"«}' P'^'^^.'^^^/l'S^Sedg^ the land, rcorved to contracting parlie.,and the United S^^^^^^^^ the Oneida. Onondaga and Cayuga nauonr^^^^ ^^,^^ ^^^^ ^ to be their property; and the '";»'^ ';°""'"' ^ under diwuwion : The important, and a very deci.ive bearing upon the pom individual.. United State, and the ",« 7''°""Xu;i.hS "ike place, but complaint on either side, no private '•«t^'"^J>°" the other; that i., by the six iia- .hall be made by the {"J"[«/ pP^/, Sen? of the United State.: and by or on la^rP^iStTtftrS^e.^^^^ law of nations. The Uniieu »'y''° ""' • , j yoreignties. They have con- cur national limit., a. if they J"" «f '"S" «''«^ ZvlT^dby their own u.age., .tantly treated with them a. «'«P«"j^»! "'S f ^^^ troatie.. They and POB«e.Bing government, compeentto^^^^^ .^ ^ . have con.idered them as public ?"^"'^^%'";^"'_Xns citizens of thi. state, the and tho Indian., to the south »"d t°Jhe west. ^yj^^dots, Ottawa., Chip- Mo the treaty between the United b^^^^^^^^^^^^^ pewaB,and others, in »'8/; '' ^^f .[! gta^' they shall deliver him up to bo pun- ••robbcry. upon ac.t.zen °f '''«U"f ** f '"^^^^^ is hero made part of a ished according to »" 'j^V^^^^i'^'^ „eLrveTb^^^^ Indians and citiien.; national compact, and the d stin»lion '» P'*7';*P ? " •„ ^f ,>. one, we ab.iidon and while v;e asaume the right o redres. the -njuries ot , ^^^ ^^^^^ ■iWiawiKutttM MtitmrTTiiaaaa i' I and ttrongly dwig- itie, and at leparato le Bonocas, who had ,co i and whrn loine board of war to in- )B or amboaaadori of upon torma of pouce lictatod to a public the remotcft resnm- or subjectH who had ved the right of con- &nd a friendly treaty, jn. I^a«tly, in Octo- bolwcon tho United iid Iho 'Jnitcd Statoa lo, and rocoivcd them id itipulatc, that tho ion or their land*, llie part of tho United air, and much lew to lonsolidato them with snt language, and ad- ut placed in the same which oxirted before United State* and the declared botweou the tho lands reserved to treaties with thisstato, ion, which has a very nder discussion : Tho done by individuals, place, but complaint at is, by the six na- States, and by or on ations, or of the nation B proof can we require, M Indians? We have 3 between friendly and loived institutes of the h those people, within ities. They have con- d by their own usages, laintain treaties. They •d friends in peace. If itizons of this state, the us tribes of Indians in- tates; and it is worth a veen tlio United States iandots, Ottawa*, Chip- dian commit mnrder,or Oliver him up to bo pun- sis hero made part of a -en Indians and cituens; of t»-~ one, we abandon trtt 'ith the Chero- l citi*w,« of tho United es, shall be punished by one of our own citizens. 113 m They also contain a new and striking provision, and that is, that cititeBs set- tling upon their lands, thereby forfeit tho protection of the United StateH.and the Cherokees may puiiioh llicm as they ploase. The sanio provision, rolutivo to the surrender and punishment of person." guilty of niu,di'r,or robbery, is in- serted in tho treaties with the Choctaws, Cliiikusaws. Shawancso, Crocks, Ot- tawas, Chippewas, &c. And, in the treaties with tho latter tribes, in t7(i9, and 1705, citizens sctllingon their lands are declared tu be out of the protection of the United StateH, and liable to punifhmeiit at the discretion of the Indians. « It would seem to mo to bo ahnost idle to contend, in the Qice of such provi- sions, that these Indians were citizens or subjects of tho United States, and not alien and sovereign tribes, " In tho ordinance of Congress, in 1787, passed for tho gjvornniont of the territory of tho United States northwest of tho Ohio, it was declared, that the Indians within that territory should never be invaded or disturbed in their pro- perty, fights, or hberties, unless in just and lawfnl war. By a just' and lawful "war, is hero meant, a controversy according to the public law of nations, between independent States, and not an insurrnction and rebellion. TheUii'tod Slate* have never undertaken to negotiate with the Indian tribes, except in their na- tional character. They have always asserted their claims against them in tlie only two ways known to nations, upon tho ground of stipulation by treaty or by force of arms. The ordinance further provided, that laws should be made to prevent wrongs done to tho Indians ; and this implies a state of dependence and imbecility on the part of the Indians, and that correspondent claim upon us tor protection, arisiag out of tho superiority of Our condition, which afford the trua solution to most of our regulations concerning them." pp. 713 — 7|6. Manner inwhith the Indian aovereigntka should be extinguished. '» I do not therefore consider tho act of 1022, as affecting tho question, whether the remainder of tho six nations still rightfully exist as a separate people, or whe- ther they have become a'l algamated with us, and incorporated into the body pohtic,as members and citizens. In my opinion, that statutohad noaurii intention; and when the time shall arrive for us to break down the partition v ill be' vecn u* and them, and to annihilate the political existence of the Indian- as nation* and tribes, I trust wo Hhall act fairly and explicitly, and endeavour to effect it with the full knowledge and assent of tho Indians themselves, and with the most scrupulous regard to their weaknesses and prejudices, and with the entiro approbation of the government of tho United States. lam satisfied, that such a course would bo required by prudence, and would become necessary, not onlj for conscience sake, but for the reputation of our justice." p. 717. Guardian care of our government, and fidelity of the Indiana. » Thus, in the resolution of Congress of January, 1776, regulating trade with the Indians, it was declared, that no person should bo permitted to trade with them without license, and that tho traders should take no unjust advantages of their distress and intemperance. In a speech, on behalf of congress, to the six nations, in April 1776, it was said to them, that Congress were determined to cultivate poacu and friendship with them, and prevent the white people from wronging them in any manner, or taking their lands : that Congress wished to afford protection to all their brothers, tho Indiana, who lived with Uiora on thi* great Island ; and that the white people should not be suffered, by force or fVaud,to deprive them of any of their lands. And in November, 1779, when Congress were disouesing the conditions of peace to bo allowed to tho six na- tions, they resolved, that one condition should be, thai no land should be sold or ceded by any of tho said Indians, cither as individuals, or as a nation, unless by consent of congress. "This resolution, almost coeval with our constitution, shows the important faci, that individual Indians, as well as tribes and communities, were, and ought to be, equally protected from imposition in the sale of their lands ; and if suoli were tho views of congress in 1779, why should not the same views have been in the contemplation of our constitution in 17771' ir, i'- w 114 the republic, watched ^ ^'^ gr«»t anxi.ty ove, n P^^ J^^^ ^^^^^^ tru.te5 to lh«.r c.re. It mu. '^e been imn ^^ ^^^^^^^ ^^ in.li»idu»U. p«rty proceeded, .ndwhclhorUwMOwncuuy p,oleclion from us M fFit'wa. Indmn property "V,^''',';ii;'„\\'„ao? the colony adminUtration. againit oar own people. V ,i " T. «arlv a. lOfU. the Onondaga, and ^nfidedthe.rlandato "7P;°'«^'°"-;Vo?Kw York, hat they werS a frw Cayuga^ for instance, told the «»*?7°J "[.f^^JXr the protection of th. nation., .tatc, that the Dutch .«"*V.l intil thoFnaliM.con.iucrid the coUny tinued without any breach °V' ^IrV then ronewrd a^^^^ the Indian., h. in 1604. Friend.hip and protoc Uon «^^/« SVTo hU day^ and wo know that .ay., obwrved the alliance °\''*y„P"\**' f,„V°riod of our rovolution. On their fidelity continued un.hakon do vno the per od o ,.^,4 one occaaion, the colonial awombly, in ^l^y.^^^yT 'V ' j." ^..j poicing their abhorrence of the prefect of /«•»"«'"« ^''" 'jS JS.o he interest th.m.elve. of Iheir land.- for. to 'h« f f '";'" °/„lSe, thMr nternal .ecuritv. Great Britain, they .aid they owed, in » S'^j'V '"'Tf^^^^^^^^ We The colony govornor.con,tvjt^acknowledg d the ft^ ^^^^.^^^ ^^ have, on the other hand in favour °[ ^^o co ony e r p ^^^ ^^^^ ^^^ congre.., to which I h-'ve already """ded, tl a th«, c y ^^^ , ,i„g Se'^t.tr.'foVro'lcrnStu:^^^^^^^^^^^ depend^enU and allio. of ''l'^ZZ£, who will '^o-Uate^o^ that U w. w.^^^ of our people,enioy ng .0 great a »"P« ">" ^ "^j J^'," '"f property, and the art. of the mind, in ttie liglit. "^/X n;„tPclion of the prope ty of the feeble and of civilized life, to have made the P^°<;^?^'°" °\>^'t ^^ Vu„Jamental article of dependent remnant, of ^^e nation., with n our m^t., a «u ^^,^ ^ ^^^ the government? Hi.notle.. wi.e than it i.ju.t,togJ ^^^^ ^^^^^^ «d liberal interpretation, in f^J"";; "^i'LraSn of the "ubect. that the article bear in mind, when wo proceed to the c"""^"*^"'? °' {'^l^^J ^.'^ell a« for our wa. introduced Jr the benefit a^^^^^^^^ rg'.°tir rhr.tx7ar.sf£re {^r^^/^.r/^^^^^^^^^^^^^^ • our ancestor, a feeble colony,. ottlod "«"»•?« ^""^'J'iX fir.t placed tRem- .hore. of the Hudson and the Mohawk, when thojel^d^an. P^^^ ^^^.^ ^^ «,lve., and their land., under o"'P'°^«/^'°";j'"^''hen wo consider the long and friendahip that was to endure for '^«»- ^^^^^^^.^^^.j ^n our account with the distressing war. in which ^^o n«l.a«. were mvolv^^^^ ^.^^ ^^ ^.^^^^^ Canadian French, and the artful means ««'"»*", j^ ' ^j^nty ha. been no detach them from our '^"''"«^ '\„'»""^'^\*^o,'e?nSid .pirit. than by the.e where bettor observed, or maintained with a more inuoiu f generous barbarian.." pp. J^""'^'. . „ ,. „ Oneido. aa very dofencelew; and. * "The act of March 15th,l799,con.ider. the One dMW^^^^^^ ^.^^^^ ^^ in order to protect them from '™P""^'°":;;£rl7arT«» between the tribe, or adviM and direct them in all controve«ieslh<^t may ari^ ^^.^ instituted ' -Cf lir^tf institu?e^r.?^^^ -a particularly for treepa... committed upon their lauds." p. 732. . Thi. la.t paragraph is commended to the particular atten.ion ol eongreM The tate of New York provided, at the public expense, that the — " '"^"f ^tiL .houla have a competent legal adviser, in all ";«-7'7; ''.^:,' and impoaition. Doe. it not become the magnanimity, I might "y^^e ju«t. «, "ouT national government to provide immediately, and at the public expense. nd nurect daya of of the lndi»n» in- it Nourre the pro- ei, or inilividuaU. :tion from ui m adminiiilratiotw, J OnoniliiKM •nd , they were a free protection of the le other lide of the olony government laken For upwardi jtt honorable, and hiitory of the eix them, •which con- iKjucrod the coUny id the Indiani, he and wc know that ir revolution. On [ovornor, expreeeed rce, and potaetwing initolheintereetof r internal iecurity. ip and iorvicee. We^ of a committee of y of Now York had ling and tupporting mdcntii and allioi of hy of the character nB, in the cultivation ropcrty, and the arte rty of the feeble and iidamontal article of I that article a benign view. We ought to ibject, that the article 1)8, a» well as for our notonly by duty.but ful confodcracy, and ocean, and along the ine first placed them- a covenant chain of lonsJder the long and our account with the from time to time, to fidelity haa been no d apirit, than by theae very defenceleaa; and, ornoy of the district to . between the tribe, or lefend suiU instituted icularly for treapaaaea attention of congresi. that the amall tribe of leir exposures to fraud I might say the juatice, 4 at the public expense. iiri •late of New Vork have .aid on thia subject . EXTRACTS FROM JUDGE S^'S CENTENNIAL DISCOURSE. The leaialature of Georgia aaya, that the govcmmcnU of Europe, and colonl.a ««hnr two. has aaid on this subject. j ..• "•'rOuILefather, did not atiempt - J-Ufy £ir own cm^.^^^^ -tl. ment,upon the European '«''<=t»7 "f. ''^ "^1. ° tSeU the ftom the crown f °«l'^'"«<» » ^rant of Un-^^^^^^^ ,^„,, ^^^.^ j,, general question behind. ' ^^^'J*"'^"J 'X« tho sons of Adam ?' Their Ed hath been of '«"«♦""" P^'^r.J/^tS^ bold assertion of prin- answer ia memorable for ita «'«»"f"/Jd!,,«'\\, proper to none. Thia aav- ciplcs. That which la common »" »" (^ ";*>^> ^^ Wncrty. ' Why may not age P««Pl« '">«lh »'°T'"' H Ze atioit theT i^ waste lands? aristians havo liberty to go and /«»" '''"fX _ht t^ ho t rth. There is a God hath ^iven to the sons of '^ZlTri^Ui^Xi^r^h v hen men held tho natural rigl^t and a S^'i"|^»„ J^^'jf JfeVSpri'^'^^^^ •<""" P""^"'' ''^ «'*"""'' earth in common. When »"»7"°" "A^- '^1^^^ c,ot tSem a civil rignt. There by enclosing and peculiar 5"»"»;^"=."'.£''"^ oTd Cth consumed them with a i. more than enough >»"d for "* and *hom ^ « '''^"^j j^ j^ft ,„ij of inha- miraculous plague, whereby the g!'«t«' P^^ "'^J",^"^^ J ,,,0 native..' Such b-tanU. Besides, we shall como m with the gooa '«Y° *" , • . J,^^ conaUnlly reapeclcd the Indians in their setllenienU and clairaa of soil. 1 he> I } f lie prol.el*d lh«r.i from tb. ir «..m.» wh«n thsf wajht fefug« ««««« !kem.- vMn. but • 'itl'- CMC ©•'••-riou. wMf»r« occiirmd : wui ihoiigh w« rtnnol but «—- - . th« . 1 dltiM then p«iriKitr«Ud. Ih.re in no pwlonce, ibat Uiey w«r« the UMfMMrai'^ th«erttMt. Wh.Uver complainU.lhurefor*. inty beju.tly urf«a iTplXophy.or mn.nily. or r.ligion, in our .Uy, rr.i>w:lini U.« wrong, .nd . iifiuf < of thi Indian., they Mt^\y tourl. the IMgrim. of Now KngUi.d. fheir h. .-' - < r« not mil.rued in innocent blood. Th.ir nearlt w«ru not bB»vy with erlmM «nd onprewion. m.grnderod by avarice. If th.y w*re not wholly without bUme. ihty wer« not deep m guilt. They might mi-t.kB the time, or he mode cfchri.liJ.iiingandci»iluuiglhe Indian.; hut they did not .•ek pretei.c.e to Mtirpate them. Private ho.lilUiM and bulcherie. there migi.t be, but they were not encor.raged or jii.l.rtod by the g ovorn.nent. It i» not. ihen. a ju.t re- oroach, wmrtime.rtti.t on their nicmorio., that their religion narrowed down ila ebantie. to Chri.tian. only; and forgot, and de.pi«id, and oppre.«id tliM* for- lorn children of the for««l." pp. 1i~Tt. TREATY WITH THF. CIIOCTAW8. The fourth article of the treaty of li!'20. i* in the following worda :— » The boondaricn hereby e.ta'.lii