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Indians. The integrity of their territory had been guaranteed by treaty. Rigorous laws had been enacted for the punishment of intruders. 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 But the time might come when the laws would be repealed ; and when Congress would, by a feeble system of legislation, leave the Cherokees defenceless.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. This law, therefore, as it respects the Cherokees, cannot be repealed by Congress.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 enacted, (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 Indians, to hunt, or in any wise destroy the game; or shall drive horses, or cattle, to range on any lands allotted or secured, by treaty with the United States, to any Indian tribes, he shall forfeit a sum not exceeding $100, or be imprisoned not exceeding six months.
By section 5th, it is enacted, 'that if any citizen shall make a settlement on any lands belonging, or secured, or granted, by treaty with the United States, to any Indian tribe, or shall survey, or attempt to survey, such lands, or designate any of the boundaries by marking trees, or otherwise, such offender shall forfeit a sum not exceeding $1,000, and suffer imprisonment not exceeding twelve months.' In the same section, the President is armed with full power to take such measures, and to employ such military force, as he shall judge necessary to remove from Indian lands any person who should “ attempt to make a settlement thereon."
There are other provisions in the act, all tending to the protection of the Indians, and to the preservation of their territory inviolate. This general law is now in force, in regard to all the Indians, whose lands are secured to them by treaty; and in regard to the Cherokees, let me say again, Congress cannot repeal it; for it is incorporated into a solemn national compact, which cannot be altered, or annulled, without the consent of both parties.
Within a few months past, a train of surveyors, professing to act under the authority of Georgia, have made an irruption into the Cherokee nation, to the great annoyance and alarm of the peaceable inhabitants. These agents of Georgia have not only attempted to survey, but have actually surveyed, what they call an old Creek boundary, which they have doubtless designated by marking trees, and otherwise. Thus have they done the very thing which is forbidden by the 5th sec. tion above quoted, under a penalty of $1,000 and twelve months' imprisonment.
Even if the people of Georgia were right, as to the. Creek boundary, they are not the proper persons to ascertain the fact. Several treaties between the United States and the Cherokees provide, that boundaries shall be ascertained by commissioners appointed by the United States, accompanied by commissioners appointed by the Cherokee nation. Can any good reason be assigned, then, why the President should not direct a prosecution to be commenced against these offenders, 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 appears, 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 disinheriting 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 be 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 sale of lands made by any Indians, or any nation or tribe of Indians, within the United States, shall be valid to any person or persons, or to any State, whetber having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.”—[Judge Story's edition of U. š. Laws, p. 109.]
This act was approved, July 22, 1790; only sixteen days before the execution of the Creek treaty, in the city of New York, which was described in my fourth number. The leading members of Congress had been leading members of the Convention, that formed the federal constitution. Their exposition of that instrument will not be controverted by any considerate writer or speaker; and their decision, in the section just quoted, is as positive and peremptory, as can well be imagined. The same provision was continued in subsequent laws, and is found, in the law of March 30, 1802, in these words :
“ And be it further enacted, That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation, or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution: And it shall be a misdemeanor in any person, not employed under the authority of the United States, to negotiate such treaty or convention, directly or indirectly to treat with any such Indian nation, or tribe of Indians, for the title or purchase of any lands by them held or claimed, punishable by fine, not exceeding one thousand dollars, and inprisonment, not exceeding twelve months.”
Then follows a proviso, that an agent from a State may be present, and propose terms, when commissioners of the United States are treating with the Indians.
In accordance with the constitution, and with the express provisions of these national laws, it has been the universal practice to obtain cessions of Indian lands through the medium of treaties, made under the authority of the United States. No fewer than nine of these treaties have been duly formed and ratified, in regard to small reservations of Indian territory, in the single State of New York. That great and powerful State has never yet complained that its rights, " as a sovereign and independent State," are in any way endangered 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 treaties which our country has made with the Cherokees, and which have received the highest sanction of the legislative and executive branches of our government; and which, no doubt, will receive the sanction of
the judiciary, whenever regularly brought before it. The Judges of. the Supreme Court of the United States long since declared, incidentally, that the United States are bound by treaties to the Indians. Mr. Justice Johnson said, nineteen years ago, (6 Cranch, p. 147,) “innumerable treaties formed with them, [the Indians,] 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 unnecessary 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 Cherokees, till they voluntarily surrender their country; 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.
Apology for this prolonged discussion—The people of the United States are jurymen in the
case, and must hear it-The Cherokees have refused to treat for ten years-Scruples of Georgia about the treaty-making power-Perfect consistency of treaties—No evidence
to the contrary-Laws, treaties, common sense, justice, all on the side of the Cherokees. · It is well known, Messrs. Editors, that a long series of numbers, on 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 advised, that no part of the preceding numbers could be omitted without injury to the cause. If I were arguing this question before the Supreme Court of the United States, simple references would be sufficient 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 members 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 upon it.
And here let me humbly intreat the good people of the United States to take this trouble upon themselves, and not to think it an unreasonable 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 Indians; that there is a greater disposition to inquire on this subject, than on any other now before the public; and that even my numbers, deficient as they are in vivacity, are extensively read with that interest, which the magnitude of the cause, in all its bearings, may well excite.
A few remarks upon the treaties with the Cherokees may not be useless.
It is a natural inquiry, Have there been any attempts to treat with this nation, since the year 1819 ? There have been many; and although 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 Congress 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 importunate. Mr. Monroe was teased by them during his whole presidency. Their scruples, as to the extent of the treatymaking power, are of quite recent origin; and it is supposed, that they would not vehemently remonstrate, if a treaty should now be made, the terins of which should compel the Cherokees to take up their residence under the shade of the Rocky Mountains. The scruples about the treaty-making 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 national treasury to purchase an additional foot of Cherokee land ; and when these declarations were made with a determination and constancy, which left no hope of forming a treaty; then it was discovered, that the government of the United States possessed no power to make a treaty. . There is a provision in the treaty of Hopewell, (the first treaty in the long series,) similar to the proposal made to the Delawares ; viz.
That the Cherokees may send a deputy of their choice to Congress.' On this provision I omitted to make a remark, in the proper place, 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 Cherokees should be allowed 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 Cherokees, negotiated from 1785 to 1819, ratified by five presidents, all resting on the same
* Some other remarks, on the treaty of Hopewell, are anticipated in the third number, as published in this painphlet, p. 13, and are therefore omitted here,
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principles,--all consistent with each other, and all now in force, except that some parts may have become obsolete by subsequent stipulations on the same subjects. The earlier treaties are repeatedly and solemnly recognized by later ones. An official letter of Mr. Jefferson 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 congress 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 neighborhood, will every where be found. So many treaties had been formed with Indians previously to 1810, that Mr. Justice Johnson pronounced them “innumerable.” In none of these treaties is the original title of the Indians declared to be defective. In none 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 a way their inheritance, or compromitted their independence. They have never admitted themselves to be tenants at will, or tenants for years. Upon the parchment all stands fair ; and, so far as their present engagements extend, they are under no more obligation to leave their country, than are the inhabitants of Switzerland to leave their native mountains. .
What is the evidence brought against this mighty mass of treaties? Nothing; absolutely nothing. The Secretary of War merely says, that the Cherokees were permitted 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 made in exact accordance with the treaties. Nearly all these compacts required appropriations of money. When the appropriations were made, the treaties 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, the 11th article of the treaty of Holston, is taken from the treaty made with the Creeks at New York, Aug. 7, 1790, where it was inserted verbatim from “an act to regulate trade and intercourse with the Indian tribes,” which was approved by President Washington only sixteen days before. This discovery I have just made, and consider it as decisive evidence. that the treaty with the Creeks was a measure of great deliberation, and that the eminent men of that day labored to make every part of their political 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 declarations of Indian agents to have been always directed to this one point : viz. to satisfy the Indians, that the government would deal justly and faithfully by them, would perform all its engagements,--and would secure to them the permanent possession of their country. They were constantly urged to become farmers, to educate their children, and form a regular government for themselves; and all this, avowedly, with a