Abbildungen der Seite
PDF
EPUB

of the territory in question, he should pursue the following delineation by the aid of a good map.

It would seem that the Cherokees possessed land extending to the following limits, if not beyond them, viz: From the mouth of Duck river, in Tennessee, on the west, to the waters of French Broad, in North Carolina, on the east; and from the head waters of the Holston, in Virginia, on the north, to some distance down the Oconee, in Georgia, on the south; comprising, beside what is now the Cherokee country, more than half of the State of Tennessee, the southern part of Kentucky, the southwest corner of Virginia, a considerable portion of both the Carolinas, a small portion of Georgia, and the northern part of Alabama. This tract probably contained more than 35,000,000 acres, of which a large proportion is extremely fertile, and some of it not inferior to any land in North America, or perhaps in the world. The country is also generally healthy, and the climate delightful. Of all this vast and beautiful tract, watered by numerous rivers, which find their way to the ocean, some of them circuitously by the Mississippi, and others more directly to the gulf of Mexico and the Atlantic, the Cherokees now retain less than 8,000,000 acres, of a quality far below the average quality of that which they have sold. Georgia claims 5,000,000 acres of this remnant, as falling within the map that State. Alabama claims nearly 1,000,000 of the residue. The portions which, in the general division, will fall to Tennessee and North Carolina, seem hardly worth inquiring about; for, if the other portions are given up, or taken by force, there will be no motive for retaining these..

of

To every application made for their lands within the last ten years, the Cherokees have said, "We are not disposed to sell any more. We have betaken ourselves to an agricultural life. We are making progress in civilization. We are attached to our schools and our Christian teachers; to our farms; to our native rivers and mountains. We have not too much land for our own comfort, and for affording us a fair chance in the experiment we 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 large for a fair experiment in the work of civilization, is undoubtedly correct. The wisest men, who have thought and written on this subject, agree in the opinion, that no tribe of Indians can rise to real civilization, and to the full enjoyment of Christian society, unless they can have a community of their own; and can be so much separated from the whites, as to form and cherish something of a national character. If the limits of the Cherokee country were much smaller than they are, this would be impracticable.

Thus stands the case; and it is now my intention to inquire how the government of the United States has regarded the Indian title, and how it has been regarded by the several States in the vicinity of the Cherokees.

Before this inquiry is commenced, however, it is proper to say, that the title of one party cannot be safely decided by the mere claims of another party. If those claims are founded in justice, they ought to prevail; if not, they should be set aside. Now whatever doctrines

the government of the United States may have held and promulgated on this 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 the kings of Great Britain had issued an annual proclamation, from the time of the discovery of America to the peace of 1783, claiming all the lands in North America between 30 and 50 north latitude, and declaring that all the nations, tribes, and communities, then residing on said lands, were subject to the laws of Great Britain, and that 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 1783, 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 as 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 up a claim would answer the purpose.

By what right do the people of the United States hold the lands which they occupy? the people of Ohio, for instance, or of Connecticut? By the right of occupancy only, commenced by purchase from the aboriginal 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 country. But what if they had not? Our right is not at all affected by their claims, or acknowledgments. The same doctrine is applicable to the condition of the Cherokees. They have a perfect right to their country, the right of peaceable, continued, immemorial occupancy and although their country may be claimed by others, it may lawfully be held by the possessors against all the world.*

The Cherokees need not fear, however, that their rights are in danger, 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, the whole history of our negotiations with them, from the peace of 1783 to the last treaty to which they are a party, and of all our legislation concerning them, shows, that they are re

* Some shallow writers on this subject have said, that "the Cherokees have only the title of occupancy;" just as though the title of occupancy were not the best title in the world, and the only original foundation of every other title. Every reader of Blackstone knows this to be the fact. As to the past, the Cherokees have immemorial occupancy; as to the future, they have a perfect right to occupy their country indefinitely. "What can they desire more?

garded as a separate community from ours, having a national existence, and possessing a territory, which they are to hold in full possession, till they voluntarily surrender it.

I now proceed to the examination of treaties, between the United States and the Cherokee nation. And here I would apprize the reader, that the case can never be fairly and fully understood, without a reference to every material article, in every treaty 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 part of the case. This is a subject, too, which the people of the United States must have patience to investigate. When measures are in progress, which have a bearing on the permanent rights and interests of all the Indians, it must not be thought tedious to read an abstract of the solemn engagements, by which we have become bound to one of these aboriginal nations.

In the revolutionary contest, the Cherokees took part with the king of Great Britain, under whose protection they then considered themselves, 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 1785. In the course of that year, the Old Congress appointed four commissioners plenipotentiary, men of distinction at the south, to meet the head men and warriors 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. III.

First compact between the United States and the Cherokees; viz. the treaty of HopewellAbstract of this treaty-Reasons for thinking it still in force-The Old Congress had the power to make treaties-Argument of the Secretary of War-Meaning of the phrases to give peace, and to allot.

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 plenipotentiary 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 assembled, give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions:"

Before I proceed to make an abstract of the articles, it is proper to say, 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 parts of treaties I shall cite

literally; and these will be distinguished by double inverted commas. Other parts will be abridged; but where the principal words of any abridgment are taken from the treaties, such passages will be marked by single inverted commas. The less material parts will be expressed as briefly as possible in my own language; but in all these cases I pledge myself to the strictest 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 most important parts. The treaty of Hopewell, then, reads as follows:

"ART. 1. The head men and warriors of all the Cherokees shall restore all the prisoners, citizens of the United States, or subjects of their allies, to their entire liberty they shall also restore all the negroes, and all other property taken during the late war, from the citizens, to such person, and at such time and place, as the commissioners shall appoint.

"ART. 2. The commissioners of the United States in Congress assembled, shall restore all the prisoners taken from the Indians during the late war, to the head men and warriors of the Cherokees, as early as is practicable.

"ART. 3. The said Indians, for themselves, and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever.

"ART. 4. The boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is, and shall be the following:" This boundary defines the northern and eastern limits of the Cherokee country.

"ART. 5. If any citizen of the United States, or other person, not being an Indian, shall attempt to settle on any of the lands westward and southward of the said boundary, which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him, or not, as they please." Then follows a proviso, as to settlers "between the fork of French Broad and Holston," whose case is to be referred to Congress.

66

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 capital crime, on any citizen of the United States, or person under their protection, the nation, or the tribe, to which such offender or offenders may belong, shall be bound to deliver him or them up, to be punished according to the ordinances of the United States;" provided that the punishment shall not be greater, than if the crime had been committed by a citizen on a citizen.'

“ART. 7. If any citizen of the 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 citizen ;' and the punishment shall be in the presence of some of the Cherokees, who shall 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 the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, in such manner as they think proper. "ART. 10. Until the pleasure of Congress be known respecting the 9th article," a temporary provision is made for the security of traders. "ART. 11. The said Indians shall give notice of any designs "formed in any neighboring tribe, or by any person whomsoever, against the peace, trade, or interests of the United States.'

"ART. 12. That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to Congress.

"ART. 13. The hatchet shall be forever buried, and the peace given by the United States, and friendship re-established between the said States on the one part, and all the Cherokees on the other, shall be universal; and the contracting,

parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established."

These articles were signed by the four commissioners of the United States, and by thirty-seven head men and warriors of the Cherokees, in the presence of William Blount, afterwards Governor of Tennessee, and eight other witnesses. In the formulary, which precedes the signatures, the articles are called a "Definitive Treaty."

Among the documents of Congress, published during the last session, is a letter from the Hon. Hugh L. White, now senator in Congress, to Mr. John Ross, at present the f magistrate of the Cherokee nation, in which the writer argues at some length, that the treaty of Hopewell is not now in force, on account of its having been abrogated by a subsequent war, and its not being expressly recognized in any subsequent treaty.

Mr. White admits that treaties are not, as a matter of course, abrogated by war; but he thinks that, in the case before us, such is the natural conclusion to be formed, after attending to subsequent treaties. I must be permitted to question, whether he would have come to this conclusion, if he had seen all the subsequent treaties, and duly considered them.

The following reasons, which have become apparent in the course of this investigation, satisfy me that the treaty of Hopewell is still in force.

1. In all the subsequent treaties, there is no intimation, not even the most obscure, that this treaty, or any other, had been abrogated, annulled, or superseded.

[ocr errors]

2. In the second treaty of Philadelphia, 1794, the United States give money "to evince their justice" to the Cherokees, for relinquishments of land by the treaty of Hopewell and the treaty of Holston.' Here both treaties are mentioned in precisely the same manner; which would hardly have been the case, if one of them had been abrogated.

3. The first article of the third treaty of Tellico, 1805, is in these words: "All former treaties, which provide for the maintenance of peace and preventing of crimes, are, on this occasion, recognized and continued in force." The treaty of Hopewell was a former treaty, which was directed almost wholly to the maintenance of peace and the preventing of crimes.

4. In the second treaty negotiated by Gen. Jackson, 1817, it is stipulated, that "the treaties heretofore [made] between the Cherokee nation and the United States are to continue in full force." phrase "the treaties" means the same as all treaties.*

The

This is the first treaty made by the United States with either of the south-western tribes, or nations. The State of Georgia had, previously to the revolutionary war, entered into compacts with the Cherokees, of which notice will be taken, at the proper time. After the peace of 1783, and before the adoption of the federal constitution, the Congress made treaties with the Indians, in precisely the same manner as with European nations. If the power to do this was doubted,

* These reasons were not inserted in the number as originally published. They were discovered, as the examination of treaties proceeded. The reader will proba bly think them unanswerable.

« ZurückWeiter »