and Indians' Advocate
Vol. II, no. 26
Wednesday, September 30, 1829
Page 1, col. 4c
(From the National Intelligencer
PRESENT CRISIS IN THE CONDITION OF THE AMERICAN INDIANS)
If our statesmen are about to interpret treaties, on the principle of favoring the party which assumed a superiority, they must take care lest there should be some very unexpected consequences.
In a treaty formed between the United States and the Chickasaws, in the year 1802, and ratified by President Jefferson and the Senate, the first article commences thus: "The Mingo, principal men and warriors of the Chickasaw Nation of Indians give leave and permission to the President of the United States of America, to lay out open, and make a convenient wagon road through their land." After stating that the road "shall be a highway for the citizens of the United States and the Chickasaws," and that the Chickasaws `shall appoint two discreet men as guides,' who shall be paid by the United States for their services, the article closes thus: "Provided always, That the necessary ferries over the water courses, crossed by the said road, shall be held and deemed to be the property of the Chickasaw Nation."
The second article makes a pecuniary compensation to the Chickasaws for "their respectful and friendly attention to the President of the United States of America, and to the request made to them in his name, to permit the opening of the road."
Who is the superior here? Translate these passages faithfully, and send them to the Emperor of China, and let him lay the matter before his counsellors, who never heard of the United States. They will say, in a moment, that the Mingo of the Chickasaws is a monarch, who in his great condescension, has granted, the humble request of the President, on the condition that the petitioner shall make a pecuniary compensation, and pay tribute, under the name of ferriage to the Chickasaws, as often as any of the President's People pass through the territory of the King of the Chickasaws.
According to the recent code of national morality, what is to be the operation of this Chickasaw treaty? Most undoubtedly, in the first place, the Chickasaws may close up the road, the stipulations of the treaty to the contrary notwithstanding. Indeed they must have exercised great forbearance already, as they have permitted the road to be open twenty-seven years, solely out of regard to this treaty; just as Georgia has waited twenty-seven years before taking possession of the Cherokee territory, out of complaisance to the engagements of the United States, which are in fact of no validity.
In the second place, none of the treaties made subsequently by the Chickasaws are binding upon them; and therefore they may reclaim all the lands which they have ceded to the United States. Of course the inhabitants of West Tennessee, who now live on fertile lands, which were ceded to the whites by the Chickasaws, must immediately remove, if the Chickasaws require it. The reason is plain. No superior can be bound to an inferior; but, that the Chickasaws are the superiors, is evident, as the Secretary of War says, in the other case, because "the emphatic language" of the treaty "cannot be mistaken."
But it may be said that there are other indications in the treaty of Hopewell, that the United States assumed a superiority, beside the phraseology, in the instances above cited. The question is not, be it remembered, whether the United States, at the time of the treaty of Hopewell, were a more powerful nation than the Cherokees; but whether, being a more powerful nation they are on that account exempted from the obligation of treaties.
The Cherokees did, undoubtedly, place themselves under the protection of the King of Great Britain; but his power failed them. It was natural that they should accept proffers of protection from some other quarter. This is not a new thing in the world. From the time of Abraham to the present day, there have been alliances, offensive and defensive, confederacies, and smaller States relying for protection upon the plighted faith of larger ones. But what is implied in the very idea of protection? Is it not, that the party protected is to have all its rights secure, not only against others but against the protector also? If some rights are yielded as the price of protection, is it not that other rights may be preserved with the greater care and certainty?
It is said that the United States were to have the sole and exclusive right of regulating trade with the Cherokees. True; but this was expressly declared to be for the benefit of the Indians, and to save them from injustice and oppression. These laudable objects were gained to a considerable extent; and if the laws of the United States on this subject had been always carried into full execution, the condition of the Indians would have been rapidly improved, as a consequence of this very stipulation.
It is said that the lands of the Indians are called their "hunting grounds;" and that they could not, therefore, have a permanent interest in the lands thus described. But how does this appear? The treaty has no limitation of time, nor is there the slightest intimation that it was to become weaker by the lapse of years. As the Indians gained their principal support by hunting, it was natural to designate their country by the phrase "hunting grounds," & this is as good a designation, in regard to the validity of a title, as any other phrase that could be chosen. It contains the idea of property, and has superadded the idea of constant use.
But to put the matter beyond all question at once, let me refer to two treaties made at the same place, by three out of four of the same American Commissioners, within six weeks of the date of the Cherokee treaty.- In both these documents, "lands" are allotted to the Choctaws and Chickasaws "to live and hunt on." These lands were secured to the Indians, then, so long as any of the race survived upon earth.
Having been occupied some time, in considering the indication of superiority, let us look a little at the proofs of equality. I leave to a future occasion some remarks upon the words treaty,peace,contracting parties, &c. which carry with them sundry most important significations.
The two first articles are strictly reciprocal. Each party is to restore prisoners of war. The articles would be proper, mutatis mutandis, in a treaty between France and England.
The 6th and 7th articles provide, that crimes committed against individuals of one party, by individuals of the other, shall be punished in the same manner.
The 8th article has the remarkable provision, that no retaliatory measures shall be adopted by either party, unless this treaty shall be violated, and even then, before such measures can be adopted, justice must have been demanded by the complaining party and refused by the other, and "a declaration of hostilities" must have been made. Thus it is admitted, as well as in the two articles, that the Cherokees have the same right to declare war, as other Powers of the earth have. To declare war and make peace are enumerated, in our own declaration if Independence, as among the highest attributes of national sovereignty.
The present doctrine is, that the Indians were regarded, as a non-descript tenants at will, enjoying by permission some imperfect privilege of hunting on grounds which really belonged to the United States. But whoever heard of tenants at will being solemnly admitted to have the right of declaring war upon their landlords? These tenants were also strangely allowed to possess the right of punishing, according to their pleasure, any of their landlords who should "attempt to settle" upon any lands, which, it is now contended, were then the absolute property of said landlords. But I shall have other occasion of bringing this interpretation to the test.
After the Treaty of Hopewell, white settlers pushed forward into the wilderness in the neighborhood of the Indian; difficulties arose; blood was shed; war was declared; the new settlement in that quarter were in a state of great alarm and anxiety.
In the meantime, the new constitution had gone into operation. The treaty-making power, which had been exercised by the Old Congress, was now confided to the President and Senate of the United States. Gen. Washington, who always pursued a magnanimous policy with the Indians as well as other nations, took the proper measures to establish a peace. On the 2d of July, 1791, the Treaty of Holston was made; and it was afterwards ratified by President Washington and the Senate. The title is in these words:
"A treaty of peace and friendship, made and concluded between the President of the United States of America, on the part and behalf of the States, and the undersigned Chiefs and Warriors of the Cherokee Nation, on the part and behalf of the said nation."
"The parties being desirous of establishing permanent peace and friendship between the United States and the said Cherokee Nation, and the citizens and members thereof, and to remove the causes of war by ascertaining their limits, and making other necessary, must, and friendly arrangements: the President of the United States by William Blount, Governor of the Territory of the United States South of the River Ohio, and Superintendent of Indian Affairs for the Southern District, who is vested with full powers for these purposes, by and with the advice and consent of the Senate of the United States; and the Cherokee Nation, by the undersigned Chiefs and Warriors representing the nation, have agreed to the following articles, namely:"
I have thought it best to cite the whole title and preamble, that the reader may see in what manner the parties to this instrument saw fit to describe themselves; or, more properly,in what manner the Plenipotentiary of the United States, with the President and Senate, sw fit to describe these parties; for it will not be pretended that the Cherokees reduced the treaty to writing. This is the second treaty, which was made with Indians, by the Government of the United States, after the adoption of the Federal Constitution. The first was made with the Creek Nation; and was executed at New York, August 7th, 1790, by Henry Knox, then Secretary of War, as the Commissioner of the United States, and twenty-four Creek Chiefs, in behalf of their nation. In comparing these two treaties, it is found that the title and preamble of the Cherokee treaty are an exact transcript from theother, except that, "Cherokee" is inserted instead of "Creek," and the word "Kings," before "chiefs and warriors," is omitted, as are the words "of Indians," after the words "Creek Nation," in the title. All the principal articles of the two treaties are also mutatis mutandis, the same in substance, and expressed by the same phraseology.- As Governor Blount made the Cherokee treaty after the model of the Creek treaty, there can be little doubt that he was directed to do so, by the head of the War Department. It is morally certain, that the Creek treaty was drawn up not only with great care, but with the concentrated wisdom of a cabinet, which is universally admitted, I believe, to have been the ablest and the wisest, which our nation as yet enjoyed. General Washington was at its head,-always a cautious man, and eminently so in laying the new foundations of our union, and entering into new relations. This treaty was made under his own eye, at the seat of Government, and witnessed by distinguished men, some of whom added their official stations to their names. The two first witnesses were "Richard Morris, Chief Justice of the State of New York," and "Richard Varrick, Mayor of the City of New York,"
These treaties were, in due season, ratified by the Senate of the United States, at that time composed of men distinguished for their ability.- Among them was Oliver Ellsworth, afterwards Chief Justice of the United States; William Patterson, afterwards an eminent judge, of the Supreme Court of the United States; Rufus King, afterwards for many years Minister of the United States at the British Court; and William Samuel Johnson, who did not leave behind him in America a man of equal learning in the Civil Law and the Law of Nations. These four individuals, and six other Senators, had been members of the Convention, which formed the Federal Constitution, though Mr Ellsworth did not sign that instrument, having been called away before it was completed. He was a most efficient member however, in the various preparatory discussions; and did much in procuring the adoption of the constitution by the State which he had represented.
The reader may fairly conclude that the document in question is not a
jumble of words, thrown together without meaning, having no object, and easily
explained away, as a pompous nullity. On the contrary,it was composed
with great care, executed with uncommon solemnity,and doubtless ratified with
ample consideration. It has, therefore, a solid basis, and a substantial
meaning.- That meaning shall be considered in a future number.