Phoenix and Indians' Advocate
Wednesday, October 14, 1829
Vol. II, no. 27
In the article of guaranty, which was the subject of discussion in my last number, the country of the Cherokee nation is called "their lands;" an expression utterly at variance with the notion that the lands belonged to the whites. Indeed, the recent interpretation of our compacts with the Indians, does great violence to the ordinary rules of language. The seventh article is short, and will bear repeating. It reads thus. "THE UNITED STATES SOLEMNLY GUARANTY TO THE CHEROKEE NATION, ALL THEIR LANDS NOT HEREBY CEDED." This seems to be, upon the face of it, a plain sentence. A man of moderate information would at least suppose himself to understand it. He would not suspect that there was a secret, recondite meaning altogether incompatible with the apparent one. But it seems that there was such a meaning. How it was discovered, or by whom, the public are not informed. The present Secretary of War, however, has lately adopted it, and urged it upon the Cherokees as decisive of the whole question at issue. The true meaning of the article, then, as explained by a public functionary thirty-eight years after it was made, would have been accurately expressed as follows: " The United States solemnly declare that the Cherokee Indians have no right nor title to any lands within the territory of the United States, as fixed by the treaty of 1783; but the United States permit the Cherokees to remain on the lands of North Carolina, South Carolina, and Georgia. (South and West of the above described boundary) until the said States shall take possession of the same."
This is the guaranty of the Cherokee country! It is certainly the interpretation of the Secretary of War. How would other treaties bear a similar explanation? The newspapers tell us, that Russia, Great Britain, and France, have engaged to guaranty the territory of Greece within certain limits. Does this mean that the Greeks are to be permitted to live, for the present, on lands which belong to the Turks; but that the Turks, whenever they please, may take possession of their own lands, and massacre the Greeks?
The Federal Constitution, says, (Art. IV. sec. 4) "The United States shall guaranty every State in the Union a Republican form of government;" the true meaning of which may hereafter appear to be as follows: "The United States shall permit each State to have a Republican form of government for the present; and until a monarchical form of government shall be imposed upon the people thereof."
The true meaning of an instrument is that which was in the minds of the parties, at the time of signing. Can the Secretary of War prove that General Washington understood the treaty of Holston, according to the explanation now given? Can he prove that the Cherokee chiefs and warriors understood it in the same manner? Surely he would not have it signed and ratified in one sense, and carried into effect in a totally different and opposite sense. He must therefore suppose, that the Cherokees intended to admit that they had no right to `their own lands' and that they stood ready to remove whenever requested. But he must allow, that if this were the meaning of the parties, it was very strangely expressed; and however sincerely he may entertain the newly discovered opinion as to the meaning, he may still find it extremely difficult to convince the world that he is right.
Will the Secretary of War guaranty his country against any loss of character, as a consequence of adopting his interpretation? Whom will he get for sponsors and compurgators? Can he engage that impartial and disinterested men will be satisfied? And if they will not,or if there is danger that they will not, could he not distrust his own conclusions? And may he not have arrived at them without sufficient examination?
Not to dwell longer on the words of the article, is it credible that the Cherokees would have signed a treaty in the year 1791, if they had been plainly told that the United States did not acknowledge them as a separate people; that they had no rights, nor any lands; that they lived upon their ancient hunting grounds by the permission of the whites; and that, whenever the whites required it, they must remove beyond the Mississippi? At that very moment the Cherokees felt strong. They and the neighboring tribes could collect a formidable force. They had an illimitable forest in which to range, with many parts of which they were perfectly acquainted. They could have driven in the white settlers, on a line of more than 500 miles in extent. Many a Braddock's field, many a St. Clair's defeat, many a battle of Tippacanoe, would have been witnessed, before they could have been expelled from their swamps and their mountains, their open woods and their impervious cane brakes, and fairly dislodged from the wide regions on this side of the Mississippi.
The people of the United States wanted a peace. We invited the Cherokees to lay down their arms. We spoke kindly to them; called them our brothers, at the beginning of every sentence; treated them as equals; spoke largely of our future kindness and friendship; and shall we now- (I speak to the People of the United States at large)- shall we now hesitate to acknowledge the full force of the obligations by which we bound ourselves? Having in the days of our weakness, and at our own instance, obtained a peace for our own benefit, shall we now, merely because no human power can oppose an array of bayonets, set aside the fundamental article without which no treaty could have been made?
But I must proceed with other parts of the compact.
ART. 8. If any person, not an Indian, shall settle on any of the Cherokees' lands, he shall forfeit the protection of the United States, and the Cherokees may punish him.
ART. 9. No citizen of the United States shall attempt to hunt on the lands of the Cherokees; nor shall any such citizen go into the Cherokee country without a passport from the Governor of a State, or Territory, or such other person as the President of the United States may authorize to grant the same.
ART. 10. 11. Reciprocal engagements, in regard to the delivery and punishment of criminals.
ART. 12 No retaliation or reprisal, in case of injury, till after satisfaction shall have been demanded and refused.
ART. 13 The Cherokees to give notice of any hostile designs.
ART. 14 That the Cherokee Nation may be led to a greater degree of civilization, and to become herdsmen and cultivators, instead of remaining in a state of hunters, the United States will from time to time, furnish, gratuitously, the said Nation with useful implements of husbandry; and further to assist the nation in so desirable a pursuit, and at the same time to establish a certain mode of communication, the United States will send such and so many persons to reside in said nation as they may judge proper, not exceeding four in number, who shall qualify themselves to act as interpreters. These persons shall have lands assigned by the Cherokees for cultivation for themselves and their successors in office; but they shall be precluded from exercising any kind of traffic."
ART. 15. The treaty to take effect as soon as ratified, by the President of the United States, with the advice and consent of the Senate.
The Treaty was signed, in behalf of the United States, by William Blount, Governor of the Territory South of the Ohio, and by forty-one Cherokee Chiefs and warriors in behalf of the Cherokee Nation, and was afterwards duly ratified by the President and Senate.
A few remarks seem to be demanded on several of these articles. In the 9th, the country of the Cherokees is again called their "lands" as it had been twice before; and the citizens of the United States are strictly prohibited from attempting to hunt on said lands; nor could any of our people even enter the country without a passport.
The tenth article, which is barely mentioned in the preceding abstract, provides, that "if any Cherokee Indian, or Indians, or person residing among them, or who shall take refuge in their nation, shall steal a horse from, or commit a robbery, or murder, or other capital crime on any citizens or inhabitants of the United States, the Cherokee Nation shall be bound to deliver him or them up to be punished according to the laws of the United States."
Thus it appears, that if a party of Cherokees should commit murder in the white settlements, upon citizens of the United States, the murderers could not be pursued on foot within the Cherokee boundary. Nay, more, if one of our own people should commit murder, or any other capital crime, and should take refuge in the Cherokee Nation, he could not be pursued, however flagrant the case might be, and however will known the criminal. The Cherokees must arrest him in their own way, and by their own authority, and they were bound by this treaty to do, (what by the laws of Nations they would not have been bound to do,) that is, to deliver up criminals for punishment. Neither the United States, nor any particular State, had any jurisdiction over the Cherokee country. But the next article, which my argument makes it necessary to quote at large, is, if possible, still more decisive of the matter.
ART. 11 If any citizen or inhabitant of the United States, or of either of the territorial districts of the United States, shall go into any town, settlement, or territory belonging to the Cherokees, and shall there commit any crime upon, trespass against the person or property of any peaceable and friendly Indian or Indians, which, if committed within the jurisdiction of any State, or within the jurisdiction of either of the said districts, against a citizen or any white inhabitant thereof, would be punishable by the laws of such state or district, such offender or offenders shall be subject to the same punishment, and shall be proceeded against in the same manner as if the offence had been committed within the jurisdiction of the State or district of which he or they may belong, against a citizen or white inhabitant thereof.
If there is any meaning in language, it is here irresistibly implied, that the Cherokee country, or "territory" is not "within the jurisdiction of any State, or within the jurisdiction of either of the territorial Districts of the United States." Within what jurisdiction is it then? Doubtless within Cherokee jurisdiction; for this territory is described as "belonging to the Cherokees,"- one of the most forcible idiomatic expressions of our language to designate absolute property. What then becomes of the assumption of jurisdiction over the Cherokees by the State of Georgia? This question will be easily decided by the man who can tell which is the strongest a treaty of the United States or an act of the Legislature of a State. The treaty says, that the Cherokee territory is inviolable; and that even white renegadoes [sic] cannot be pursued thither. A recent law of Georgia declares the greater part of the Cherokee country to be under the jurisdiction of that State; and that the laws of Georgia shall take full effect upon the Cherokees within less than a year from the present time. The Constitution of the United States (Art. VI) has these words. "All treaties made under the authority of the United States, shall be the supreme law of the land: and the judges in every State shall be bound thereby, anything in the laws or Constitution of any State to the contrary notwithstanding." The question of jurisdiction is, therefore easily settled.
But the full acknowledgment of the national rights of the Cherokees, and of the sacredness of their territory, is not all that the treaty contains. The 14th article was framed expressly for the purpose off preserving and perpetuating the national existence of the Cherokees. That they might be led to a greater degree of civilization" appears to have been a favorite design of the American Government. With a view to this object, and that they might "become herdsmen and cultivators," the United States proffered some important advantages; and it is by the aid of these very advantages; and by the cooperation of faithful teachers and missionaries, that the Cherokees have been led to a greater degree of civilization than any other tribe of Indians. So undeniable is this fact, that Georgia had repeatedly complained of it; and the Government has been blamed for doing those things which the United States were bound to do by the most solemn treaty stipulations.
In a word, the treaty of Holston is a plain document, having a direct object. It is consistent with itself.
It does not contain the most distant implication, that any portion of the human race, except the Cherokees themselves, had even the shadow of a claim upon the Cherokee territory. It guaranties that territory to its possessors as their own absolute property; accepts some small grants from them; and engages that the United States shall befriend them, in their future efforts for improvement. That the Cherokees have never forfeited the benefit of these stipulations will appear in subsequent numbers.