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Statement of important positions on this subject-Other treaties with Georgia–Treatya
making power of the general government Are the Indians capable of making a treaty ?—Are engagements with them io be called agreements ?- The Supreme Court cannot pronounce a treaty void-Supposed case of Mr. Girard-Whether the national government can cede the territory of a State.
In the postscript to my last number, I proposed to suspend my communications for some weeks, announcing, at the same time, several topics, which remained to be discussed. This annunciation seems not to have been sufficiently explicit. I must be permitted, therefore, to state, in the use of different phraseology, the points, which ought still to be examined, before the strength of the Cherokee cause can be justly and fully estimated.
Unless I am mistaken, it can be clearly shown,
That the original right of the Cherokees, confirmed and guaranteed by so many treaties, was not, and could not be, affected by the compact of 1802, between Georgia and the United States :
That Georgia so understood the matter, for a quarter of a century after the year 1802, as appears by numerous acts of her legislature :
That the proposed plan for removing the Indians is visionary, and derives no support from experience:
That the proposed guaranty of a new country would not be entitled to confidence; and that the offer of a guaranty, in present circumstances, would be esteemed by the Cherokees a cruel insult:
That the actual removal of the southwestern tribes, would, in all probability, be followed by great evils to them, without any corresponding benefit to them, or to others : and
That à conscientious man will be very cautious how he advises the Indians to yield their unquestionable rights, and to commit all their interests 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 neither remedy nor indemnity.
It has appeared, that the colony of Georgia, (with the cognizance of the British government,) and the State of Georgia, in the days of her youthful independence, negotiated with the Creeks and Cherokees on the undisputed basis, that these Indians were nations; that they had territorial and personal rights; that their territory was to remain in their possession, till they should voluntarily surrender it; and that treaties with them are as truly binding, as treaties are between any communities whatever. Such is the aspect of all the transactions, in relation to this subject; and no candid reader of history can avoid these conclusions. Seven formal treaties, all possessing these general characteristics, have been already mentioned. The last of them was dated in the year 1783, just fifty years from the first settlement of the. colony. It is probable, that, within this period, many subordinate negotiations were held.
The treaty of Galphinton was formed in the year 1785, and is not unfrequently referred to. The next year, a treaty of peace was made
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 representative of Georgia, leave no room to doubt, that they are of the same general character, as the treaties which preceded them.
In 1787 the federal constitution was formed, by which the power of making treaties was conferred on the President and Senate of the United States. As this was a subject of great importance, the framers of the constitution not only took care (Art. II. section 2) to assign the treaty-making power to 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 has negotiated with Indians. All public measures respecting them have fallen within the scope of the powers vested in the general government.
Georgia, 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 the 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 notoriously 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 and 18th centuries. The colony of Georgia always spoke of the Creek and Cherokee nations; 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 treaty, 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 politicians, that civilized people may be called nations and can make treaties; but uncivilized people are to be called savages, and public engagements with them are to be denominated— what such engagements 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 matters unexplained. Nor are we told in what respects treaties between
civilized nations are to be interpreted differently from public engagements with an uncivilized people.
A representative from Georgia said in his place last winter, that these "agreements with the Indians had improperly been called treaties.” (Let it be borne in mind, that Georgia herself always called them treaties.) In a subsequent part of his speech, he spoke of the “bad faith” of the Creeks, in not observing the stipulations, which they had made in these “ agreements;" and to this alleged bad faith, he gave the additional hard names of " fraud and perfidy." We may gather, therefore, the conclusion, that savages are bound by their agreements, though these agreements must not be called treaties. It is contended, however, that the United States are not bound by their agreements with the Cherokees, because the United States cannot, in their federal capacity, make agreements with savages, although the general government has the exclusive power of making treaties with civilized nations : the whole of which philosophy and logic, when thoroughly digested and concocted, amounts to this ;-that treaties between civilized nations bind 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 their engagements, or “agreements," whenever it suits their pleasure, or their interest, to do so. This is the morality to be incorporated into the new code 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, Hamilton, and Jefferson had the temerity, (following the uninterrupted current of example and authority, which had come down from the discovery of America,) to treat with Indians as nations, and to consider engagements with them as being treaties, within the meaning of the constitution. From the origin of our general government to the present day, every President of the United States, not excepting the present incumbent, has used the words treaty and nation, in precisely the same manner; 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 any judicial tribunal.
Again, if the President and Senate should be justly chargeable with a mistake, in extending the treaty-making power to a subject, to which it was not properly applicable ; and if the Supreme Court might decide, that a certain document, purporting to be a treaty, is 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 and justice require ? Should the people of the United States
take advantage of a blunder made by their highest functionaries, and long acquiesced in? especially if the other party had reposed entire confidence in the validity of the proceeding, and had made important sacrifices in fulfilling his stipulations ?
Suppose, for instance, that an agent of the United States had bought ships of 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 would 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 with him has improperly been called a treaty; that the President 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 engaged 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 sending 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, willingly to execute their bargains ; and, as to dishonest men, I shall do all in my power to hold them to their bargains, whether they are willing, or not."
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 relinquished land, and gave up many advantages, for the sake of a solemn guaranty in return. If the agreement, which they made, was not a treaty, it was an obligatory contract ; and they have a right to expect, and to demand, that the contract shall be fulfilled.
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 supported, 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 Indians, that no human power should deprive them of their hereditary possessions, without their own consent. This was no encroachment upon the rights of Georgia ; nor did it relate at all to the territory of Georgia; which territory embraced those lands only, that had been previously obtained from the Indians. If the treaty of Holston were an encroachment upon the rights of Georgia, why was no complaint made at the time? The senators from Georgia were in their seats; and the citizens of Georgia were never charged, I believe, with passively surrendering their rights. Why, then, was no complaint made for more than thirty five years ?
But it is perfectly clear, that the United States may cede the terri
tory of any State in the Union by treaty. Such an event may be very improbable ; I care not if you say it is morally impossible, that the President and Senate should ever cede any part of what is really, and truly, the territory of a State. Yet, if such an event should take place, the transaction would not be void for want of constitutional power. The general 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 scarcely a more common subject of treaties, in every part of the world, than a cession of territory. How are foreign nations to know the extent of 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 binding? Indeed, at this very moment, there is a dispute about the boundaries 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 he should mistake, the State of Maine will lose 7,000,000 acres of land ; and all this will be lost by the operation 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 thousandth part so disgraceful, as to have it truly said, that the United States adopted from Georgia the maxim, that power is right ;* and, in pursuance of that maxim, despoiled an unoffending and suffering people of those very posses. sions, which WE HAD SOLEMNLY GUARANTEED TO THEM FOREVER.
No. XX. Controversy respecting unappropriated lands-Compact of 1802–The United Stales 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 bind, ing upon Georgia, as upon the United States—The public measures of Georgia, till lately, in accordance with the compact-Proclamation of Governor Troup-His opinion of the sacredness of treaties. From the preceding investigation it is manifest, that the Cherokees can plead against the claims of Georgia, not only that best of all titles, immemorial occupancy, fortified as it is by the solemn guaranty of the
* The legislature of Georgia adopted this maxim, in nearly these words, as I shall show in a quotation from a report, approved by that body, in December, 1827.