HON. H. L. WHITE'S LETTER
[Concluded from our last]
These considerations account for the language used in the 2d article of the Treaty of Holston, and enable us pretty clearly to discover the import of the words in the 6th article--sole and exclusive powers to regulate their trade. By the 2d article, the Cherokees had deprived themselves of all power to make any treaty with any foreign sovereign, or State, or individual. This power, thus given away in the 24 article, it was essential should be vested in some sovereign, who would feel disposed to exercise it for their benefit, whenever the proper time for its exercise should arrive; hence the language used in the 6th article. The power parted with in the 2d is vested by the 6th in the United States. In the case of the States, the language of the Constitution is 'Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' In the case of the Indians, the language in the treaty is 'That the United States shall have the sole and exclusive right to regulate their trade.' In each case, as I think the same idea is communicated: in each a power is given to regulate their external trade; and in neither is a power given to make municipal laws for them. They may regulate the trade or commerce which other States of nations carry on with them; but as to the internal trade, to be carried on within their own limits, it is as much the subject of their own municipal laws, as if the Cherokees still remained independent, to all intents and purposes. If it be true, as some suppose, that, in virtue of this 6th article in the treaty, Congress has power to make municipal laws for them and to regulate all their internal trade, within the body and heart of the Cherokee nation, where is the necessity for an express stipulation for the road from Washington to Mero district, for the Kentucky road for the road to Georgia, for that to Tombeckbe, and for the post road to New Orleans? Where was the necessity for the stipulation for the free navigation of that part of the Tennessee River which flows through the nation? All these stipulations, made at different times and in several treaties were entirely useless. If it be true that the United States, in virtue of this treaty stipulation, have not only the power to regulate the trade within the nation but also all their (Indian) affairs, where was the necessity of those stipulations which provide that white persons who may go within the nation and there commit crimes may be brought out and punished in the same manner as if they had committed the like crimes upon or against white persons within the limits of the district where they resided. The object of this provision is important and cannot be misunderstood. The Cherokees were to be considered as a nation; the bounds of their territory were ascertained; within those bounds they would have all the rights of sovereignty not surrendered; if a white man went within their limits and committed a crime or trespass, he would have been amenable to the tribunals of the country where the offence was committed, and the nature of his crime, as well as the measure of his punishment, would have been ascertained by the municipal laws of the country in which he had transgressed. Knowing this, and being unwilling, on the one hand, that a guilty citizen should escape with impunity, and determined on the other, that the guilt or innocence of an American citizen should not be ascertained by an Indian tribunal, nor should the nature of his crime or measure of his punishment be ascertained by an Indian Legislature, this provision was inserted. But if an opinion different from mine be entertained; if it be true that the United States are clothed with the power to regulate internal trade, and all other affairs, and the Indians have no power to act on these subjects; these provisions were unnecessary.
The Congress had nothing to do but pass an act, and the same object would be attained. The United States even as early as 1791, looked forward to the time when the Cherokees would become enlightened, when they would become civilized, when they would be capable of self-government, when they would be owners of property, real and personal, which each individual within the nation, who might be the owner of it, would be desirous of having secured to his exclusive use. How were these objects to be attained? The stipulations of the treaty of that year answer the question- by giving them a permanent interest in the country; by leaving them in the possession of all the powers of other independent communities, consistent with the interest of the United States. Without an internal government of their own, they must remain savages. A government cannot be administered without money: without the power to impose a tax, money cannot be collected. In selecting objects or subjects of taxation, they have the same range as any one of the States. A tax upon merchants, upon pedlars (sic), and upon hawkers, is common in many, if not in all the States. If the Cherokees have the power to impose a tax upon anything within their limits, there is nothing in any treaty or statute which prevents them from imposing a tax upon an Indian or Indian countryman settled and residing in the nation, and carrying on the business of trade and merchandise, without any license from the United States; and if they are prohibited from the exercise of this power, it must be upon some principle which would prohibit any one of the States likewise.
There now are, and have been for years, resident merchants in the nation, using capital sufficient for respectable retail stores almost anywhere in the United States. They neither have, nor is there any law requiring that they should have, a license to enable them to vend their goods. There are many Indians and Indian countrymen with good farms, well stocked. Cannot these be taxed? If they can, what is there to exempt the itinerant merchant, the hawker or pedlar (sic), within the nation, with a license from the United States? Was it the intention of the United States to give such person a privilege over the resident Indian merchant?- There is not one word in the treaty to countenance such an idea. Under the parental care of the Federal Government, the Cherokees have been in a good degree reclaimed from their savage state: under their patronage they have become enlightened: they have acquired a taste for property of their own, from the use of which they can exclude all others. They have acquired the property itself. There must be laws to protect it, as well as to protect those who own it. By what community ought these laws to be enacted? Laws there have always been, and laws there must continue to be, emanating from some power capable of enacting them. Where is that power? It must be in Congress, or in the Cherokees. Congress has never exercised it, the Cherokees always have. And if I have been correctly informed, one of the Presidents of the United States, to aid them, digested a code of written laws, which he supposed suited to their society, sent it to them with his recommendation that they would adopt them. The nation gave them a candid examination, and did adopt such of them as they thought adapted to their situation. Afterwards, if I am not mistaken in a communication to Congress, it was mentioned with approbation that the Indians were progressing in the good work of civilization, and assimilating their government to that of the United States. I never heard that their power was
doubted. That this power had been surrendered to the United States by the words that 'Congress should have the sole and exclusive right to regulate their trade' or by the words 'managing all their affairs in such a manner as they think proper,' if they ought to be considered in force. I cannot suppose it possible that in making these treaties the United States either wished of (sic) intended to take from the Indians the power of making municipal laws. If they did, it must have been with a view to vest the same powers in Congress. It would have been cruel to divest the Indians of the power without at the same time intending to use it for their benefit. This power never has been used, that I know of, perhaps could not be used, by Congress, to advantage. Of all subjects that Congress could be called to get upon, this would be the most difficult- to make a code of laws by which the Cherokee Nation should manage all their internal affairs. I cannot but believe that this is power most fit to be exercised by the Cherokees themselves, and that such was the opinion of those who framed the treaties; and, therefore, they were left in possession of it. At the time this treaty was framed, and this language used, the Cherokees were in possession of a district of country, spread into several States: they lived in many detached villages, separated from each other, some of them by many miles, each village having its own peculiar customs. This country is solemnly guarantied by this treaty to the Cherokee Nation. Municipal laws to regulate its trade and all its affairs within those limits, are to be made from time to time, and those laws frequently to be changed, so as to suit the changing coalition of those inhabitants, and thereby promote their happiness and comfort. Is it probable that the Executive of the United States, or his negotiator, would desire this power taken from the Indians and vested in Congress? Would the Indians be willing to transfer it? Were Congress to be perpetually in session, without any other business to engage their attention, it is not probable they could discharge such a trust in their own satisfaction or to the satisfaction of an Indian community.
General Washington knew better than to desire the transfer of such a power to the United States; his negotiator, acting under his special instructions, knew better; we ought not therefore to give to the treaties such a construction as would vest such a power in Congress, if language used can be fairly satisfied without doing so. It seems to me this can be done. 'Congress shall have the sole and exclusive power to regulate their trade:' these words fix the subject to be regulated; that is, their trade, the trade of the Indian nation as a nation; not the trade between A and B within the nation. In other words, Congress alone is to have the power of regulating the trade of the Indian with all other sovereigns. By the Constitution of the United States, Congress is vested with the power to regulate commerce with foreign nations, and among the States and with the Indian tribes. What power have the States lost? The power to regulate commerce with foreign nations, and among each other; but neither has lost the power to regulate transactions between A and B within its own limits. The Indian nation must some time have a government to regulate the internal concerns of the nation; indeed they have always had one; as they become enlightened and civilized, this government, like that of other nations, will require money to support it. There is no stipulation in any treaty that Congress shall defray this expense out of the common fund. Is Congress by the treaties to impose a tax upon the Indians? The American Government never has advocated the doctrine that taxes can be imposed by a body, where the people taxed are unrepresented. The Constitution of the United States prohibits an enumeration of the Indians for the purposes of representation; they are therefore unrepresented in Congress. If we suppose the treaty of 1785 in force, and add to the words 'regulate their trade' 'and all their affairs,' it will not aid the other side of the question. Immediately it will be asked, with whom? I answer, with foreign nations. As a nation, they have much to transact with the United States, or with other nations, which does not relate in the regulation of trade, the fixing boundaries, treating with other Indians, 'c. The affairs then which they have to transact with other powers, the United States have the power to manage for them; but not to manage affairs which relate to the relative duties of individual Indians to each other, within their own territory, nor to the duties which individuals of the Indian community owe to the Cherokee Nation. So soon as the Indian nation had existence as a community, there was a power somewhere to make municipal regulations for the government of that community, and among those powers one to levy and collect taxes, that power still exists somewhere; I think it is not, one of those powers transferred to the United States; it must therefore remain with the Cherokee Nation. I will now inquire whether there is anything in the treaties which will exempt the merchant having a permit from the United States, and vending his merchandize, by retail, within the nation, from a tax. By the 9th article of the Treaty of Holston, it is provided, 'that no citizen or inhabitant of the United States shall attempt to hunt or destroy the game on the lands of the Cherokees; nor shall any citizen or inhabitant go into the Cherokee country without a passport first obtained, 'c.
By the 14th article, it is provided that the United States will send a number of persons not exceeding four to reside in the country, who shall qualify themselves to act as interpreters; these persons shall have lands assigned them by the Cherokee for cultivation for themselves and their successors in office, but they shall be precluded from exercising any kind of traffick. These articles are the only ones to be found, which speak of a passport, or permission to go into the nation.
The object of the provision in the 9th article it appears to me, is very obvious it is to preserve peace with the Indians. If all descriptions of persons were permitted to enter the nation, this could not be done; disorderly immoral persons would make their way into the nation, practice fraud upon the Indians, and a war might be the consequence. Hence the stipulation that no white person shall enter the nation without a passport from the Government; but it is not said that his passport shall confer any other privilege upon him, but that of excusing him from being considered as a trespasser, a person that is outlawed by his own Government, as one that the Indians may punish or not, as they choose. Before he obtains the permission to go, he must satisfy his own Government as to the business upon which he wishes to enter the nation; and if the Government believes he can be safely trusted among the Indians, the officer gives him a permission to enter the nation, and in that permission specifies the business upon which he goes. It is a request furnished him to satisfy the Cherokees that the individual named in it has the consent of his own Government to go into their country, for the purpose of trading with them; there is not stipulation that he shall in any respect, be entitled to a privilege as to his traffick, which their own people do not enjoy. The exemption claimed by the man who holds the passport the right of vending his merchandize upon better terms than the resident merchant. This surely never was intended. It cannot fairly be argued that this paper is given in virtue of the power to regulate trade. If so and Congress are to regulate their internal trade, how comes it that no license has ever been required for the resident merchant? For years, Indians and Indian countrymen have vended goods in their own country, without any such instrument; but the American citizen who wishes to go into the nation for this or any other purpose, and does not wish to expatriate himself, must obtain the consent of his Government; and this written consent very naturally expresses the business which he intends to follow while there. The Government derives no revenue from these passports; and is an exclusive privilege to be granted without an express stipulation in the treaty to authorize it? I think it never was intended. If the Cherokees are to be considered as a nation, they must have power to impose taxes and make other municipal regulations for their own government, unless they have surrendered that power to the Federal Government, which I am of opinion that they have not. If they have the power to impose taxes, there is nothing which forbids them to tax merchants which would not equally prohibit the States from doing so. The States have frequently exercised the power, it has never been denied them by any judicial decision, and I must believe they have rightfully exercised it. I can see nothing in the treaties which I think was intended to place an Indian trader with a license upon more favorable footing than the resident merchant without a license; therefore I conclude the nation have the same power to tax the one that they have to tax the other. Let us now see what Congress has actually done; whether there is a new provision of theirs that will be violated by an exercise of this power. Upon examining this subject, I cannot discern any one provision which will be infringed.
The act of 1802 (ch. 273, sec. 7.) provides that no citizen or other person shall be permitted to reside at any of the towns or hunting camps, of any of the Indian tribes, as a trader, without a license under the hand and seal of the Superintendent of the Department, or of such other person as the President of the United States shall authorize to grant licenses for that purpose, 'c. The section then proceeds to point out the duties of the superintendent, in taking bond and security from the applicant for the license, and vesting a power to recall the same, if the condition of the bond should be violated. The 8th section imposes a penalty of forfeiture of all the merchandize in his possession, and the punishment of fine and imprisonment upon any person who shall go and make a settlement for such purposes without a license. The 9th and 10th sections prohibit the person having the license from receiving in barter, guns, instruments of husbandry, cooking utensils, articles of clothing, horses, 'c. and inflict a penalty upon the trader who may offend in any of these particulars. The 11th section prohibits any person authorized to grant the licenses from being concerned in the trade, under a heavy penalty; and the 12th prohibits, under a like penalty, any person from purchasing land, or taking a lease from any Indian, or nation, or tribe, 'c.- The 19th section gives a general permission to citizens to travel the road to Price's settlement, if the Indians do not object thereto.
Now, in all these provisions there is nothing which countenances the idea that the Indians have not a power to pass laws for their own government, and to levy taxes for its support upon all persons within their limits. By the treaty, no man can enter the nation without permission from the United States. They may refuse permission entirely, or grant it upon what conditions they choose. They have prescribed the terms, and imposed penalties; but, upon whom do they operate? Upon the whites, not upon the Indians in any instance.- These are the terms upon which the citizen may take his goods into the same market with the Indian merchant; but there is not a single word communicating the idea that he shall be exempt from any imposition to which the Indian trader without license would be subject. Instead of this act placing him on better footing than the Indian resident merchant, it would seem to me to place him on worse. He must comply with the terms and conditions to which he has subjected himself to his own Government, and he must likewise conform to the local regulations of the nation, except as to crimes, for which there is a treaty stipulation. No provision is made by which he shall collect debts due to him, or be compelled to pay those he may happen to owe.
I am aware of the provisions of the acts of 1806 (ch. 48, 1809, ch. 205, and of 1811, ch 307:) and in them I find nothing which asserts, in the Federal Government a power to regulate the internal affairs of the nation. The object of these acts was to devise a plan upon which the United States should themselves as a nation, carry on trade as commerce with the different Indian nations, and to prescribe rules for the government of their own officers and agents, in transacting this business; and not to assert any right to make municipal regulations for the conduct of any person within the nation. The President, it is true, is authorized to establish for the United States, trading houses near to or within the nation. Suppose Congress were to believe it the interest of the United States to carry on the business of merchandize in each of the States or in England, and were to pass an act authorizing the President to establish trading houses in each of these places, would any one contend that this act would be the assertion of a power to manage the internal concerns of the several States, or of those of Great Britain? Surely not. The Government would be doing exactly the same thing which two individuals do, when they enter into partnership, and agree to establish a trading house, and fix to the terms upon which their business shall be conducted. By these acts Government expected to conciliated the Indians, and increase their influence over them, by carrying on a system of merchandizing with them upon fair and liberal principles; but never intended these acts to operate as acts of sovereignty, exercised over the Indians, or any of their affairs, within their nation. I therefore conclude there is nothing in any of the acts regulating trade and intercourse with the Indians, or in those establishing trading houses, which, in any degree, denies to the Indian nation the power which they now claim. But suppose the Cherokees, have surrendered to the United States the power to regulate their trade, internal as well as external, it will not, as I think thence follow that they have not the power to impose the tax in question. The power to regulate trade, and the power to raise revenue, are distinct powers; and the surrender of the one is not necessarily the surrender of the other.- The several States have surrendered the power to regulate commerce; they have also given to the United States even the power to collect taxes; will any one argue that they have, therefore, parted with the power to levy and collect taxes for themselves? I think not. It may, therefore, be true that the Indians have deprived themselves of all power over trade, both at home and abroad, and still their power to raise revenue remains unimpaired. There is matter for each power to operate upon, without necessarily interfering with the other; and, therefore, these powers may well be in different hands. The possibility that the powers may be so exerted as to conflict with each other is no reason to deny that either possesses the power. The theory of all Governments is, that the powers conferred will be honestly exercised, for the attainment of the specified objects.- A knowledge that the powers might be abused, by exerting them for different purposes, can never be admitted as an argument against the possession of them; otherwise, every Government could be stripped of all power. In arguing such questions, we must take it for granted that those conferring the powers for given purposes expected an honest and fair exertion of them, for those purposes only; and that no person or persons entrusted with the exercise of sovereign power would exert it for the attainment of one object, when it had been given for the attainment of another. Treaties rest upon the same principle- the confidence reposed in each party. Admit, then, that by the treaty the Indians gave up their whole power to regulate both internal and external trade, still, as they have not given up the power of levying taxes and collecting revenue, they retain this latter. If, in such a case, under a pretence of collecting revenue, it was obvious they were regulating trade, it would be as much a violation of the treaty as if their avowed object was to regulate trade. To collect a tax from merchants, to compel them to pay a small portion of their profits at stated periods, for the support of the Government where they transact their business, has been a very common mode of collecting revenue; and no State has been charged with attempting to regulate commerce when they have exercised such power. Why, then, should the Cherokees be denied the power, because, by possibility, they might abuse it, and undertake to regulate? I have believed, and still do, that, under the treaties, the Cherokees must be considered a nation, possessing like powers with other nations, except so far as they have surrendered their independence to the United States. That they have made surrenders of power of making municipal regulation for their own internal government, that, among the powers they still retain, is that of imposing taxes; and, as there is nothing in either the treaties or laws which forbids them from taxing a licensed trade, living and doing business within their territory, that they may impose the same tax upon him that they do upon the Indian trader who has no such license.
I regret exceedingly that to you I have ever given any opinion upon a subject that interests your nation.- Had I known the purpose for which it was desired, I should have been silent. But, having given such an one as honestly entertained, I can never express any other until convinced of my error. I can, with the same sincerity, tell you, that, where my opinion as a professional man does not correspond with that entertained by the officers of Government, there can be no doubt that I am in error, although I cannot see it. They cannot well mistake the meaning of the Constitution and the treaties; in such a case, I easily may. Under the protection of the United States, the Cherokees have been, in a great degree, reclaimed from hunters to agriculturists, herdsman, merchants, mechanics, and from savages to civilized men; from extreme poverty, many have risen, not only to a competency, but to affluence. These are the strongest evidences of the parental care of the officers of the United States. Let no consideration induce you to act in opposition to their will. Let their counsel be the rule of your conduct.- You will then have reason to hope that the good work of civilization, so happily begun, may, ere long, be completed. A different course will produce your ruin. Let the world know that the protection of the United States is withdrawn, and the Cherokee Nation cannot exist twelve months.
I am your obedient servant.
HU. L. WHITE.
Mr. JOHN ROSS.