and Indians' Advocate
Wednesday, September 30, 1829
Vol. II, no. 26
Page 1, col. 1b-4b
From the National Intelligencer
PRESENT CRISIS IN THE CONDITION OF THE AMERICAN INDIANS.-
The title of the Treaty to which I referred in my last number is in these words:
"Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew Pickens, Joseph Martin and Lachlan M'Intosh, commissioners plenipotentiary of the U. States of America of the one part, and the Head men and warriors of the Cherokee of the other."
The preface to the articles is thus expressed:
"The Commissioners Plenipotentiary of the United States in Congress Assembled, give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions."
Before I proceed to make an abstract of the articles, it is proper to say, that in regard to this and all subsequent Treaties, I shall be as brief as appears to be consistent with putting the reader in full possession of the case. The more material parts of treaties I shall cite literally; and these will be distinguished by double inverted commas. Other parts will be abridged; but where the principal words of any abridgment are taken from the treaties, such passages will be marked by single inverted commas. The less material parts will be expressed as briefly as possible in my own language; but in all these cases I pledge myself to the strictest fidelity. At least, the subject of every article shall be mentioned, that the reader may judge of the general aspect of the whole, as well as of the meaning of the most important parts. The Treaty of Hopewell, then reads as follows:
ART. 1. The Head Men and Warriors of all the Cherokees shall restore all the prisoners, citizens of the United States, or subjects of their allies, to their entire liberty: they shall also restore all the negroes, and all other property taken during the late war, from the citizens, to such person, and at such time and place, as the Commissioners shall appoint.
"ART. 2. The Commissioners of the United States in Congress assembled, shall restore all the prisoners taken from the Indians during the late war, to the Head Men and Warriors of the Cherokees, as early as is practicable.
"ART. 3 The said Indians, for themselves, and their respective Tribes and Towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever.
"ART. 4 The boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is, and shall be the following:" This boundary defines the Northern and Eastern limits of the Cherokee country.
"ART. 5 If any citizen of the United States, or other person, not being an Indian, shall attempt to settle on any of the lands Westward and Southward of the said boundary, which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same within six months after the ratification of this Treaty, such person shall forfeit the protection of the United States, and the Indians may punish him, or not, as they please." Then follows a proviso, as to settlers "between the Fork of French Broad and Holstein," whose case is to be referred to Congress.
"Art. 6. If any Indian, or Indians, or persons residing among them, or who shall take refuge in their Nation, shall commit a robbery, or murder, or other capital crime, on any citizen of the United States, or person under their protection, the Nation, or the Tribe, to which such offender or offenders may belong, shall be bound to deliver him or them up, to be punished according to the ordinances of the United States;" `provided that the punishment shall not be grater, than if the crime had been committed by a citizen on a citizen.'
"ART. 7. If any citizen of the United States, or person under their protection shall commit a robbery or murder, or other capital crime; on any Indian," he shall be punished in the same manner as if the `crime had been committed on a citizen:' and the punishment shall be in the presence of some of the Cherokees, who shall have due notice of the time and place.
"ART. 8. No punishment of the innocent for the guilty, on either side, "except where there is a manifest violation of this Treaty; and then it shall be preceded first by a demand of justice; and if refused, then by a declaration of hostilities"
"ART. 9 For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper.
"ART. 10. Until the pleasure of Congress be known respecting the
9th Article," temporary provision is made for the security of traders.
"ART. 11. The said Indians shall give notice" of any designs, "formed in any neighboring tribe, or by any person whomsoever,against the peace, trade, or interests of the United States."
"ART. 12 That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to Congress.
"ART. 13. The hatchet shall be forever buried, and peace given by the United States, and friendship reestablished between the said States on the one part, and all the Cherokees on the other, shall be universal; and the contracting parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established."
These articles were signed by the four Commissioners of the United States, and by thirty-seven Head Men and Warriors of the Cherokees, in the presence of William Blount, afterwards Governor of Tennessee, and eight other witnesses. In the formulary which precedes the signatures, the articles are called a "Definitive Treaty."
It may be well to look, for a few moments, at some of the features of this instrument, though it is by no means so important, as two or more of the treaties which have since been negotiated by the same parties. Among the documents of Congress, published during the last session, is a letter from the Hon. Hugh L. White, now Senator in Congress, to Mr. John Ross, at present the Chief man of the Cherokee Nation, in which the writer argues at some length that the treaty of Hopewell is not now in force, on account of its having been abrogated by a subsequent war, and its not being expressly recognized in any subsequent treaty. Whether the conclusion of Judge White is correct, or not, has little bearing on the present investigation. If the treaty be not now in force, it was in force once; and its meaning may be worth considering.
This is the first treaty made by the United States with either of the South western tribes, or nations. The State of Georgia had, previously to the Revolutionary War, entered into a compact with the Cherokees, of which notice will be taken, at the proper time. After the peace of 1783, and before the adoption of the Federal Constitution, the Congress made treaties with the Indians, in precisely the same manner as with European nations. If the power to do this was doubted, or denied, the doubt or denial, has never come to my knowledge. The Treaty of Hopewell was negotiated by Commissioners, all of whom, if I mistake not, resided at the South; and I have never heard that any remonstrance was offered by either of the States in the neighborhood of the Cherokees, on the ground that the Old Congress had no power to agree upon a line of demarkation with the Indians. A line was fixed, in the 4th article; securing to the Indians the undisturbed possession of a territory, which appeared on the map to be a part of Virginia, the two Carolinas, and Georgia; the States of Kentucky and Tennessee not having then been formed. If this treaty now stood alone, and the relations of the parties had not been changed by subsequent events, no white man could have attempted to settle on any of the lands within the Cherokee boundary,`even down to the present day, however he might have been sustained in his attempts by the constituted authorities of any or all of the States situated in the neighborhood of the Cherokees. Against such an attempt, the Indians would have been protected by the faith of the Confederated Republic. This remark is made simply for the sake of drawing the attention of the reader to the inviolability of the Indian territory, as strongly implied in the fifth article.
From the phraseology adopted in two or three passages of the treaty, the conclusion seems to be drawn by the present Secretary of War, that treaties with the Cherokees are not binding upon the whites; at least not to the extent of their literal and proper meaning. The argument stands in this form. The Cherokees fought on the side of the British, in the war of independence. The British were beaten; and therefore the Cherokees were a conquered people. To a conquered people the United States gave peace; and therefore the United States are not bound by the very articles which they dictated.- They allotted a boundary to the Cherokees; and therefore the United States are not under obligation to respect the boundary, which they themselves allotted. To refute such conclusions, established by such a process of reasoning, is unnecessary. The very statement of the argument is enough.
It is true, that the Commissioners of the United States, in several treaties made about the same time, express themselves rather haughtily, when they declare that they give peace to the Indians. The fact is well known, however, that the whites were much more desirous of peace than the Cherokees were. The inhabitants of our frontier settlements were in constant dread of incursions from the natives of the forest. Impoverished as our country was by a seven years war, it would have been impossible to have scoured the vast wilderness from the settled country to the Mississippi. Any force which could then have been sent, would have fared worse than the army of St. Clair did, in a far less dangerous field, nine years afterwards. The Cherokees could not have set up for nice verbal critics of the English language, as they did not understand a word of it. It is questionable whether one Indian interpreter in ten would make any difference between give peace and make peace or agree to a peace. The Cherokees doubtless understood, that the United States were desirous that there should be an end of fighting; but it is incredible that they should have thought there was lurking, under the phrase of giving peace, any such mysterious implication of superiority on the part of the whites, as should ultimately exonerate the superior from all obligation to keep faith with his inferior. Least of all could they have supposed, that there was a latent power in this phrase, which should destroy the validity of all future compacts between the same parties, in not one of which the insidious phrase is to be found.
The phrase to give peace was a favorite one with the Romans, and was doubtless copied from them. I think Bonaparte used it also on some occasions. But neither the Romans, nor Bonaparte, so far as I know, ever soberly contended that a treaty was to be interpreted, otherwise than according to the obvious and proper meaning of the words, merely because one of the parties assumed rather a haughty air, in some few instances of the phraseology.
As to the word allot, it is said to have been commonly used in the Southern States as synonymous with fix or establish. To say that a boundary was allotted to the Cherokees was no more than to say that a boundary was established or agreed upon; for the boundary is not said to have been allotted by the United States. It may have been, indeed it must have been, as the whole scope of the treaty shows, allotted by the consent of both parties.