and Indians' Advocate
Wednesday, August 12, 1829 (sic)
Vol. II, no. 20
Page 1, col. 1b
THE CHEROKEE INDIANS.
Such is the spectacle now presented by the Cherokee Nation. It reflects honor on the past policy of the government, and affords irrefragable proof of the sincerity of its intentions towards the aboriginal and a conclusive answer to the charge of cruelty and grasping cupidity in its transaction with them. When the British Quarterly accuses our government of deceptive attempts "to preserve appearances by fraudulent and compulsory purchases of land," and states to Christendom (as it lately did, No. 61) that "it has always been the boast of American policy, that the Indian shall be made to vanish before civilization, as the snow melts before the sunbeam," we can appeal to this tribe for a refutation of the charge. Here we can say exists a community of aboriginal, enjoying the light of christianity, and fast advancing, under the protection of the republic, to an equality with the white race in civilization.
Here is the evidence on which we rely for a refutation of the calumny, and while it exists, it will afford the proudest evidence of the beneficent spirit of the government, of an unstained national character and of the power of civilization.
Whether this testimony is to remain in the archives of the counter, among the title deeds and evidences of national character, which were handed over the late administration to its successors, seems now to be a question. The talk of Gen. Jackson to the Creeks, of March 23d and the letter of the Secretary of War to the Cherokee delegation, of the 18th of April last, indicate a departure from the ancient policy of the government. They are in a different strain from those hitherto presented, but whether in a loftier, a nobler, or even in a fairer strain, is a question now to be examined. The President, in his talk, tells the Creeks that they must remove, because "you and my white children are too near each other to live in harmony and peace." This is a short and emphatic way of solving the difficulty. It is indeed a "straight talk," and comes to the point with military directness.
With the Cherokees, however, the Administration is more argumentative,
and certain principles and statements are appealed to, in order to justify this
departure from its ancient policy. The Secretary places it on the ground
that in the revolutionary war, the Cherokees were allies of Great Britain; and
that the Treaty of Hopewell, by which they were received into the favor of the
United States, only allotted to them certain territory as hunting grounds; that,
upon the acquisition of independence all the rights of Great Britain became
vested in the original states of this Union, including North Carolina and Georgia,
and that those states never relinquished the rights of sovereignty and jurisdiction
over the soil to the Union, and consequently may now exercise those rights,
notwithstanding any treaty made by the federal government: that the guarantee
given by the United States (although that such guarantee was ever given is only
a matter of inference) was not adverse to the sovereignty of Georgia, because
the United States had not the power to give such guarantee. It would not
be too strong to say that these assumptions and statements are generally unfounded,
and evince an entire want of knowledge of our Indian relations, but as we seek
truth rather than victory, and to inform the public, so that its opinion may
have its proper and legitimate effect, we shall present a concise statement
of these relations from official sources.
It is true, as the Secretary has stated, that the Cherokees were hostile to the United States in the Revolution and that, by the Treaty of Hopewell, the boundary of the lands "allotted for their hunting grounds," were marked out. It is also true, (although not stated) that by the same treaty it was agreed, that if a citizen of the United States attempted to settle on these lands, he might be punished by the Indians according to their own laws; and by the 12th article it was provided, that the Indians should have the right to send a deputy of their own choice, whenever they thought fit, to Congress. This treaty was made in the year 1785, under the old Confederation, when Congress had the power of regulating trade and managing all affairs with Indians, not members of any State." This tribe were clearly not members of any State, and of course the management of their affairs fell under the jurisdiction of Congress. Georgia, however, did not assent to this construction of the articles of confederation. Although during the fury of the contest, and while dependant for existence upon the arms and efforts of the Union, it remained silent; no sooner was peace obtained, than it sought to appropriate for its separate benefit, the territory obtained by the common effort of all; and set up pretensions to interfere with the Indian tribes, to which Congress was compelled to oppose its high authority. The opinion that was entertained of the conduct of Georgia in this respect, may be collected from the proceedings of Congress in the year 1787, particularly from a report dated August 3d, a resolution passed October 20th, and the instructions to the Commissioners for negotiating a treaty with the southern Indians.
In all these the conduct of Georgia is condemned, and its pretensions pointedly rebuked. The Federal Constitution was finally adopted, and in that instrument provisions were inserted with the view of averting the previous difficulties. The treaty-making power was vested in the President and Senate, and the States were prohibited from entering into any treaty of any description; and the limitation contained in the old articles of confederation and the power of Congress for regulating Indian affairs, viz: "provided that the legislative right of any State within its own limits, should not be infringed or violated," was omitted.
This change was designedly made, in order to prevent collisions between the State and National authorities, in relation to the Indians, which had taken place under the old Constitution. The Federal government was now vested with the exclusive power to regulate commerce with the Indians and of making treaties with them; and also, of repelling their hostile encroachments.
To this constitution, Georgia became a party; and thereby relinquished all right of interfering with Indian affairs. The general government proceeded to establish friendly relations with the Cherokees, who, with the Creeks, had been driven into a war with the whites, by the conduct of Geo.
In 1791, a treaty was concluded at Holston between the United States and the Cherokee by which the boundary line was established, and the Cherokee claim to the land, east and south of the line extinguished.
The 7th article of that treaty is as follows:
"The United States solemnly guarantee to the Cherokee Nation, all their land not hereby ceded."
It was further stipulated, that all citizens settling on the Cherokee
land, should forfeit the protection of the United States; and that any citizen
of the United States, committing any offence within the Cherokee territory,
should be punished as if the same had been committed "within the jurisdiction
of the State or District to which he may belong, against a citizen thereof."
Provisions were also made for the improvement of the condition of the tribe, and that they "may be led to a greater degree of civilization, and to become herdsmen and cultivators, instead of remaining in a state of hunters."
In 1798, a further cession of their territory was made by the Treaty of Tellico and the United States, in the 6th article, agreed to "continue the guarantee of the remainder of their country FOREVER."
Other treaties were subsequently made down to the year 1819, not altering the relations established by these treaties: but on the contrary, by a treaty made in 1817, the old treaties were expressly confirmed.
These were the obligations which the United States had assumed, previous to the agreement of 1892, with Georgia: a solemn guarantee of the Cherokee lands forever to that nation, and a promise to establish them as cultivators of the soil, and to promote their civilization.
The Federal Government now declares this guarantee no longer binding, and that the United States have not the power to interfere to prevent their expulsion. The Cherokees have not released them from their obligation. They have committed no act of hostility, by which the treaties have been annulled. On the contrary, they have adhered to the United States through good report and through evil report: and when their blood has been shed in battle, it was in the white man's cause.
How then is our pledge redeemed? The agreement between the United
States and Georgia of 1802, does not touch the case. This was a compact
to which the Indians did not assent. It released the United States from
no obligations to third parties. It only declared the boundary line between
the public territory, and that territory which was thereafter to constitute
the State of Georgia. Previous to that agreement, the western limits of
that state had been the subject of dispute, Georgia claimed to extend its western
boundary to the Mississippi; the United States claimed, as public territory
all west of the Ocmulgee River. According to the construction given by
the United States to the charter of Georgia, its western boundary would have
run through the present center of that State; and all between that line and
the Mississippi, was territory to which both parties laid claim. After
much discussion, these conflicting claims were settled by the agreement of 1802,
Georgia ceding to the United States "her right, title and claim to the jurisdiction
and soil of the lands" west of her present boundary; and the United States ceding
to Georgia their "claim, right and title to the jurisdiction or soil of any
lands" east of that boundary. It must be borne in mind, that in no other
instance, where the claims of the United States and individual States to disputed
territory were settled was it thought necessary for the United States
to cede their claim to the territory reserved the state as within its proper
limits. The National Government accepted the cession and the title of
State, to the territory not ceded, became complete. In the case of Georgia,
however, it was deemed essential, in order to vest in the State a good title
to a part of its present territory, comprehending that in dispute, for the United
States to cede their right. This cession, of course, comprehends no more
than the United States could give, viz: a title encumbered with all their obligations
to the Indian tribes occupying the territory ceded: and Georgia took it subject
to the guarantee of the United States to the Cherokee Nation.- The guarantee
was prior to the agreement, and unless it be maintained that the United States
and Georgia were competent to dispose of the vested rights of their parties,
it must enter into the construction of that agreement. The cautious limitation
of the obligation assumed by the United States to extinguish the Indian title,
east of the boundary, "when it could be peaceable obtained upon reasonable terms,"
shows that this guarantee entered into the contemplation of both parties, and
that they looked only to a voluntary cession. To this mode of extinguishing
the Indian title, and the limitation of its sovereignty, which the prior obligations
of the United States imposed, Georgia expressly assented by an act of its Legislature,
declaring the articles of cession to be binding and conclusive on the State,
and its citizens forever. It now, however, claims the right to remove
the Cherokees by extending its sovereignty over them. The citizens of
Georgia have become impatient of their long and continued residence among them,
and they are clamorous for their removal. Their cupidity has been excited
and their avarice inflamed, by the fair and promised land which they occupy,
and they call aloud for its division among them by a lottery. The spacious
territory which has been so lately ceded by the Creeks, has excited, rather
than satisfied their desire;-
"As if increase of appetite had grown
By what it fed on,"-
and they demand the Cherokee country, with cultivated fields, with the view of further corrupting the people of the State by another land lottery. This is the object at heart. This is the real motive of all this craving desire to remove the aboriginal. For years the state has been urging it on the general government in a tone alike discreditable to its humanity and patriotism. In order to effect it, one fraudulent treaty has been made, at the instance and under the direction of that state government, which the late administration, sustained as it was in that particular, by public opinion, refused to carry in to effect. Finding that they can neither persuade nor cajole the Cherokee into a cession, they now attempt to intimidate them by threatening to extend the jurisdiction of the State over them.
In this at least there is nothing to shock the moral sense of mankind. The jurisdiction of Georgia! Surely there can be nothing here but an extension of the benefits of civilization, under the direction of the civilized legislature. The inhabitants of Europe and America, who may feel solicitous for the aboriginal, can find here no substantial violation of guarantees, and disregard of national faith. It is but an extension of the social and judicial system of Georgia over the Cherokees. The whole procedure is in the spirit of benevolence, and forms only a part of the national policy.
Such is the plausible appearance of the outward aspect this proposition; but in reality it is a decree of removal and exclusion. It is mild like the voice of Jacob; but the hands are those of Esau. The jurisdiction of Georgia is one thing to the whites; but another and an opposite thing to all of a different complexion. To the whites it speaks in the spirit of the common law, and secures to them freedom and equal privileges; to the Indian it speaks in the language of proscription, and divesting him both of civil and political rights, degrades him, from the rank of a freeman, to the level of the disfranchised mulatto and negro. With the privilege of voting or of appearing in courts, either as part, witness, or juror, stripped entirely of his civil rights, and of his national character, he is placed at the mercy of a government maintaining in the face of heaven and men, such principles as have been disclosed in the official papers of that unfortunate state, on this subject.
The would indeed by committere agnum lupo.
It is not easy for a government to divest itself of all concern, for those whose interests are committed to its charge. The worst governments have always more or less of public motive to excuse their policy; but when a government has two classes of subjects, the one to enrich, and the other to impoverish; when one becomes the sole object of its care, and the other of its rapacity, it is impossible to imagine a system of more unmitigated oppression.
Unchecked by human feeling, and with all it measures sanctioned by motives of expediency and the public weal, it deliberately proceeds to the perpetration of acts, from which individual wickedness would recoil with horror.
Well may the general government take it for granted, that the migration of the Cherokee Nation is the only alternative. It is not, however, the alternative; it is the inevitable result, if they chose to remove in peace. With the high and exalted ideas entertained by the Cherokees of their nation character, they never can consent to be disfranchised and scattered like vagrants through the State relying for the protection, only, on the tender mercies of their persecutors. Better, at once, to oppose themselves to this systematic usurpation; and calling on the United States for a compliance with their guarantee, and relying on the justice of their cause, to resist, to the last, all invasions of their country, and of their homes. They have everything which an animate them to resist. On one side, exile and extirpation, on the other their continuance as a civilized people. If they remove, into the wilderness beyond the Mississippi, nothing human can preserve them from the fate of other tribes, which have been overwhelmed by the tide of civilization. Civilized man has passed them in his onward march to the Pacific; and they have not proved victims to a movement, which, like the Car of Juggernaut, has crushed others into the earth. They have escaped from most of the frontier collisions and conflicts, which are produced by the advance of the pioneers of civilization into the wilderness.- They have obtained a vantage ground, from which they can see the promised land; where, according to the words of their American father, "they may cultivate the soil, and increase their little sparks to great fores," under the protecting arm of this Republic.- Let them cling to it as to the ark of their salvation. If necessary, let them resist to the death. Better, a thousand times better, would be the quiet of the grave, than protracting a miserable existence, rendered wretched by the repeated and compulsory removals into the wilderness, before the advancing footsteps of the more powerful people who occupy their country, and treat its ancient possessors with persecution and heartless contempt. Tantalized with the hopes of civilization which they are forbidden to realize, deprived of the hard vigor of the savage state, and then called upon to relinquish the comforts of their improved condition, if driven beyond the Mississippi, they must share the fate of a race, which, seemed doomed to be scattered by every blast, but to whom no spring brings renovation.
From this fate they have no hope of escaping, but through the justice and integrity of the federal government. By an implicit (it is to be hoped not an useless) reliance upon its good faith they have stripped themselves of every other resource under heaven. With the solemn guarantee of the United States in their hands, they demand the interposition of the national arm to save them from degradation, exile and death.
This appeal cannot be answered by a reference to idle distinctions between the powers of the state and federal governments. The Indian affairs are a common concern. The faith of the nation is plighted to them, and its character is pledged to the world, that the Indian tribes within the limits shall be treated with delicacy, kindness and humanity. The eye of Europe is upon us, and we cannot escape from this responsibility. These legal distinctions and constitutional subtleties, repugnant to the common sense, and unpropitious to the common necessities of mankind, will be regarded as mere inventions for the purpose of covering our participation in the plunder of the aboriginal. The world will not believe; indeed it will not; that our constitution interposed insupportable obstacles to the preservation of national faith. The whole distinction will be regarded as a mere pretence, infidelity more offensive to fair minds, than the open avowal of injustice. Far better would it be for the President of the United States to give to the complaining Cherokees the short answer of the Dey of Algiers to some plundered merchants asking redress. "Do you not know that my people are a band of robbers, and that I am their captain?" Far better, and far more manly, would be this bold avowal, than a pretended distinction, which, under an affected reverence for legal observances and constitutional forms, abandons a helpless and dependent community, to all the desolating consequences of arbitrary power, stimulated to action by the most intense and craving cupidity.
God forbid that the American people should sanction this distinction. I do not fear that they will. They spring from a generous stock of ancestors -- from men who hazard all, and suffer all, through a steadfast adherence to principle. The faulty part of their character does not savor of a spirit of selfish injustice, or of grasping rapacity. It rather inclines them to the opposite extremes. Their principles of government and of State policy, are drawn from that great reservoir of jurisprudence established by their English ancestors, and enriched and liberalized by the free discussions and masculine understandings of their own revolutionary fathers. The principles, their glory and their projections; at once an ornament and a safeguard; have sunk deep into the hearts of the people of the United States. They are endeared to them by the associations of childhood and the experience of maturity. They are the great results of their past history -- the fences and monuments of their present liberties -- and the pledges of a long career, of future glory and prosperity. They form the public sentiment of the country -- a principle which, like the gravitation, pervading and omnipotent, at once supports and controls their political system.
As long as they remain unchanged and unchangeable, giving aliment and life to public opinion; as long as our government shall continue to be the embodying of the sentiments of an enlightened people -- the concentration of the opinions of a free, educated, and Christian community, the House of Representatives with its awful power of impeachment bring these opinions into action, the Senate, the guardian of state sovereignty and of national faith -- the body whose sanction gave existence & value to those sacred guarantees, & the tribunal before which all violations of these pledges must be arraigned, as long as these branches of our government shall continue to be guided by the will of the nation, so long will our plighted faith guard the rights of the Cherokees and of all other dependents upon our justice, "from the spoliation of rapacity and the iron hand of oppression."