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The proclamation continues thus : .“ All good citizens, therefore, pursuing the dictates of good faith, will umite in enforcing the obligations of the treaty as the supreme law, aiding and assisting, &c. &c. and all officers, civil and military, are commanded to be vigilant in preventing offences under it, and in detecting and punishing offenders.”
In the principles here assumed and enforced I heartily concur. The Governor, who issued this proclamation, is now a member of the Senate of the United States ; where he will have the best opportunity to pursue the dictates of good faith, and to assert the obligations of treaties as the supreme law. Most gladly shall I see him engage in a work, which so well becomes a Senator of our great republic; and, should be thus engage, he may be encouraged with the thought, that his efforts will not be unsuccessful.
No. XXI. Gov. Troup's opinion of the effect of treaties--Soil and jurisdiction go together, The Chero
kees camot be secured in the possession of their lands, if they come under the laws of the States-Reasoning of Messrs. Campbell and Meriwether-Select Committee of Congress-Laws of Georgia-Decisions of the Supreme Court-These decisions a defence of the Cherokees.
It is at the present moment a favorite doctrine of Georgia, that the right of soil in the Indian country and of sovereignty over it, is vested in that State; and has been thus vested, ever since the peace of 1783, As a consequence of this assumed right, the Senate of Georgia openly declared, in December, 1327, that the State might properly take possession of the Cherokee country by force; and that it was owing to her moderation and forbearance that she did not thus take possession.
But Gov. Troup appears to have been of a different opinion. In his letter to the Secretary of War, dated June 3, 1825, speaking of the treaty, by which he supposed the territory of the 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 Indian claims are extinguished forever. · The article is worded in the present tense. On the instant of ratification, the title and juris, diction became absolute in Georgia." ..
Now I humbly conceive, that, if the title and jurisdiction became absolute in Georgia, as a consequence of the treaty, the inference is inevitable, that neither the title, nor the jurisdiction, was absolute before that event; and if the Indian claims were extinguished by the treaty, there must have been claims in existence, previously to that treaty, capable of being extinguished by it. The Cherokees are now in the same condition, as to title and claims, as the Creeks. were, before the treaty of the Indian Spring; therefore the Cherokees, have. at the present time, on the authority of Gov. Troup, claims yet to be extinguished by treaty, and neither the title, nor the jurisdiction, of the Cherokee country has yet become absolute in Georgia. . .
Proceeding in his argument, as to the effect of the treaty, Gov. Troup says : “ Soil and jurisdiction go together; and if we have not the right of both, at this moment, we can never have either by better title. If the absolute property, and the absolute jurisdiction have not passed to us, when are they to come? Will you make a formal concession of the latter ? When and how? If the jurisdiction be separated from the property, show the reservation which separates it: 'tis impossible."
The design of this argument was to prove to the general government, that Georgia might properly survey the newly acquired lands immediately; though the Creeks were not obliged to remove till September 1826. The argument is this : By the treaty, the right of soil became absolute in Georgia, and the right of jurisdiction accompanied the right of soil ; therefore Georgia might immediately exercise the power of surveying the lands. Without giving any opinion, as to the conclusiveness of the Governor's reasoning, it is evident, (and for this purpose I have cited the passage,) that he considered the title as having passed by means of the treaty. Consequently, the title, both in respect to jurisdiction and soil, was previously in the Creeks, and not in Georgia ; and, of course, the title to the Cherokee country, both in respect to soil and jurisdiction, is now in the Cherokees, and not in Georgia.
I entirely agree with the Governor, that the soil and jurisdiction go together. The letter of the President of the United States to the Cherokees, by which they were assured that they should retain possession of their lands, though they should come under the laws of Georgia, must have been founded altogether in mistake. Where is the power in the general government to secure individual Cherokees in the possession of their lands, after the Cherokee community shall have ceased to exist, and the individuals of which it was composed shall have come under the dominion of four or five different States ? The Senate of Georgia has declared, that the Cherokees, as individuals, will not be suffered to retain more than a sixth part of the land, which is now in the possession of the Cherokee community, within the chartered limits of Georgia. And as to that sixth part, how could the President of the United States secure the individuals in the possession of it, or guard against the effect of State laws, which might be designed to operate in such a manner, as should speedily deprive the Indians of what little property they now possess ?
In the written communication of Messrs. Campbell and Meriwether, eminent citizens of Georgia, acting as commissioners of the United States, and being exceedingly desirous to obtain a cession of the Cherokee country for the use of Georgia, these negotiators, in the year 1823, say to the Cherokee nation, “ The sovereignty of the country which you occupy is in the United States alone. No State, or foreign power, can enter into a treaty or compact with you. These privileges have passed away; and your intercourse is restricted exclusively to the United States." · The doctrine is here plainly asserted, that the general government only could treat with the Indians ; and that separate States were as really excluded from such an agency, as foreign nations were. This exclusive right of treating, which the commissioners call sovereignty, was not an encroachment upon the natural rights of the Indians, it
being a matter of express and positive stipulation with them, perfectly understood by them, and operating for their protection.
A Select Committee of the House of Representatives, in a Report. made to Congress, March 3, 1927, cite a passage from a letter, addressed, by the Senators and Representatives in Congress from Georgia, to the Secretary of War, dated March 10, 1824 ; in which the 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 Indians, 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 construction, 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 is 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 the constant admission, on the part of that State, in her most solemn acts of legislation, that the Indian lands within her chartered limits, are acquired for her use, through the medium of the treaty-making power, 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 dispose 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 made and concluded at the Indian Spring, on the 12th of February, 1825.”
In the first section it is enacted, “ That the territory acquired of the Creek nation of Indians, by the United States, for the use of Georgia, as described in articles of a treaty entered into and concluded between commissioners on the part of the United States, and the chiefs, head men, and warriors of the Creek nation of Indians,” &c.
This is a perfectly fair statement of the case. If the territory was lately acquired of the Creek nation, it manifestly belonged 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, “soil and jurisdiction go together.” If it was acquired by the United States, this was done because, under the federal constitution, as it has been uniformly administered, the United States have the exclusive power of extinguishing Indian title. If it was acquired by a treaty, it was because the Creeks, being a nation, could dispose of their common property by treaty only. If it was acquired for the use of Georgia, then Georgia had not the use previously; but the United States had covenanted with Georgia, that they would obtain this title for her use, as soon as it could be obtained “peaceably" and “ on reasonable terms."
Abundant evidence might be adduced to prove that Georgia, till after this period, always admitted the exclusive power of acquiring the
Indian territory to be vested in the United States. But additional proof is unnecessary. The man who will not be convinced by the citations already made, must be beyond the reach of conviction.
It has been said, that the Supreme Court of the United States has declared the jurisdiction of the Indian country to be in Georgia. But the decision of the Court, in the only two cases which I have seen quoted on this subject, does not touch the question of jurisdiction, or present title; except that the Court throws out some expressions, which were manifestly intended for the protection of the Indians in their right of occupancy; 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 contingent interest of Georgia in the Indian territory was of such a nature, that it might be granted to individuals, and might not improperly be designated by the technical phrase of seisin in fee; though this contingent interest was subject to the Indian title of occupancy, which 'title was certainly to be respected by all courts, until it should have been legitimately extinguished.' 6 Cranch, 142.
In the case of Johnson and McIntosh, the point decided was, that grants of land, by Indian chiefs to individuals among the whites, cannot be sustained by the courts of this country. The reason assigned is, that the rulers of the European nations, the legislatures of the colonies before the revolution, and of the several States, and the United States, since the revolution, have all asserted the exclusive right of the government to extinguish the Indian title. The court did not feel justified in going into the consideration of abstract principles. The question to be decided was a mixed question of national and municipal law, which had been settled by the practice of the governments of Europe and America, from the discovery of this continent to the present time. But the court was very explicit in admitting the Indian title of occupancy.
After stating, that the governments of Europe agreed among themselves to respect the right of discovery as claimed by each, the court said :
“ The exclusion of all other European nations, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it." 8 Wheaton,
Again : “ They [the original inhabitants) were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion.” p. 574.
Yet, as the Indians could not sell to foreign nations, except to the discoverers and those claiming under them, (this being a matter of agreement among the European nations ;) and as they could not sell to private purchasers, (this being a matter of municipal law among the whites, and often of treaty stipulation between whites and Indians,) the natural rights of the Indians were impaired, or rather circumscribed or limited. There was nothing in this limitation, however, of the nature of usurpation or encroachment. It was a matter of necessity, if perpetual collisions were to be avoided; and a matter of mutual benefit to colonists from different nations; and especially of benefit to the
Indians. What a scene of strife, enmity, fraud, and bloodshed, would have been exhibited, if English, French, and Spanish colonists had been permitted to make purchases of Indian lands from the same tribe, in the same neighborhood, and at the same time? And what impositions would have been practised upon Indians by white purchasers, if they had been allowed to make purchases of the natives, without any restraint from the government? It is both absurd and cruel to construe this necessary limitation of the natural rights of the Indians, (a limitation which was necessary to the protection and security of all parties,) as a' denial that the Indians have any rights at all. The court gives no sanction to such an absurdity. Besides the passages already quoted, are several others in accordance with the same principles.
" It has never been contended," says the court, “ that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right." p. 603. o
The Indians have the right, then, of possessing their country, without limitation of time; though they are restrained from selling their country to any individuals, or any community, except the general government; a restraint, which operates altogether in their favor.
Again, the court says : “ Such a right [the Indian title of occupancy] is no more incompatible with a seisin in fee, than a lease for years is, and might as effectually bar an ejectment.” p. 592.
I consider this passage as most decisively in favor of the right of the Cherokees to remain on their land, as long as they please. Most readers of newspapers do not understand terms of law. I must be permitted, therefore, to attempt an illustration of what is, to a lawyer, perfectly plain.
If A. holds land to himself and his heirs forever, he is said to be seized in fee of that land. He may sell an estate, or interest, in the land to B. and his assigns, for a hundred or a thousand years, and yet he will himself remain seized in fee; because, at the expiration of the hundred, or the thousand years, the land will come again to the possession of his heirs. During all this time, A. and his heirs are seized in fee, and B. and his assigns are tenants for years. Now a decision that Georgia is seized in fee of land within her, chartered limits, which land is at present in the possession of the Cherokees, no more proves that the Cherokees are not the "rightful occupants of the soil, with a legal as well as just claim to retain possession of it,” than the fact that A. is seized in fee of land, of which B. has a good lease to him and his assigns for a terın of years, proves that A. may bring an ejectment against B. while the term is unexpired. As, in the latter case, A. and his heirs must wait till the hundred, or the thousand years are expired, before they can claim possession ; so, in the case of the Cherokees, Georgia must wait, till they voluntarily dispose of their country, through the medium of the treaty-making power; and then Georgia may take the immediate possession.
There is, indeed, another possible alternative. If the Cherokees should make war upon the United States, they might then, by the laws of nations, be treated as a conquered people. In that case, their coun