From the National Intelligencer
PRESENT CRISIS IN THE CONDITION OF THE OF THE AMERICAN INDIANS.- NO. V
Having described the manner in which the first Indian treaty, after the organization of our present form of Government, was negotiated by the Cabinet of President Washington, and shown that it was ratified by Senators not inferior to any of their successors, and, who were doubtless peculiarly cautious in the first exercise of the treaty-making power, and having ascertained, by a minute comparison, that the important articles of the treaty of Holston, executed less than a year afterwards, are a mere transcript of the first treaty, I proceed not to inquire, What is the meaning of the Treaty of Holston?
The title and preamble were quoted in my last number. The title begins thus: 'A treaty of peace and friendship.' What is a treaty? It is a compact between independent communities, each party acting through the medium of its Government. No instrument which does not come within this definition can be sent to the Senate of the United States to be acted upon as within the scope of the treaty-making process.
If the agents of the United States purchase land for a public object, such a purchase is not a treaty.
If the State of Virginia, on the application of the United States, cedes a piece of land for a Navy Yard, or a fort, a compact of this sort is not a treaty. If the State of Georgia cedes to the United States all its territory, enough for two large new States, and the United States agree to make a compensation therefore, such a session and agreement are not a treaty. Accordingly such a negotiations are carried on and completed by virtue of laws of the National and State Legislatures. Of course, compacts of this kind are never called treaties, and the idea of sending them to the Senate of the United States for ratification would be preposterous. One of the confederated States is not an independent community; nor can it make a treaty, either with the nation at large, or with any foreign Power. But the Indian tribes and nations have made treaties with the United States during the last forty years, till the whole number of treaties thus made far exceeds a hundred, every one of which was ratified by the Senate before it became obligatory. Every instance of this kind implies that the Indian communities had governments of their own; that the Indians, thus living in communities, were not subject to the laws of the United States; and they had rights and interests distinct from the rights and interests of the People of the United States, and in the fullest sense, public and national. All this is in accordance with the facts, and the whole is implied in the single word treaty.
Again; the parties on the banks of the Holston signed a treaty 'of peace.' It is a matter of history that there had been fighting and bloodshed. These acts of violence were not denominated a
riot, a sedition, a rebellion; they constituted a war. The settlement of the difficulty was not called a pardon, an amnesty, a suppression of a riot, a conviction, a punishment; it was called a peace. Nor is it said here, as in the Treaty of Hopewell, that the United States 'give peace'. There is in the title and preamble, every indication of perfect equality between the parties. In point of fact, the whites were, at that moment, much more desirous of peace than the Cherokees were.
This is also a treaty of 'friendship;'
which implies, that the Cherokees were not only a substantive power, capable of making peace and declaring war, but that, after the treaty was executed, there were expected to remain in the same state. It was not a surrendry of their national existence, but the establishment of amicable relations to maintain and, so far as this treaty could operate, the amicable relations, thus acknowledged to exist, were to continue through all future time.
Who are the parties to this 'treaty of peace and friendship?' The President acts in behalf of one of the parties, and 'the undersigned chiefs and warriors of the Cherokee Nation of Indians, on the part and behalf of said Nation. The Cherokees then are a nation; and the best definition of a nation is, that it is a community living under its own laws.
A nation may be a power of the first, second, third, or tenth rate. It may be very feeble, and totally incompetent to defend its own rights. But so long as it has distinct rights and interests, and manages its own concerns, it is a substantive power; and should be respected as such. Any other rule of interpretation would make force the only arbiter. St.Marino, in Italy, is described in our best gazetteers as 'a small but independent republic;' and yet it has got not half so many people, nor the three hundredth part so much land, as the Cherokee Nation now has.
It has been said, indeed, that the Indians, being an uncivilized people, are not to be ranked among nations.- But, this is said gratuitously, and without the least shadow of proof.- How many treaties did Julius Caesar make with savage tribes, who were greatly inferior, in every intellectual and moral respect, to the Cherokees of the present day? There is as little reason as truth in the objection.- Has not God endowed every community with some rights? and are not these rights to be regarded by every honest man and by every fair minded and honorable ruler?
But, above all, the objection comes too late. The United States are, as a lawyer would say, estopped. General Washington with his Cabinet and Senate, pronounced the Cherokees to be a nation. It does not appear that a doubt ever crossed the mind of a single individual, for nearly forty years, whether this admission were not perfectly correct. President Adams (the elder,) Jefferson, Madison, and Monroe, all admitted the Cherokees to be a nation, and treated with them as such. The Secretary of War, (now Vice-President of the United States) negotiated the last treaty with the Cherokees, and affixed his signature to it. In this treaty, as in every preceding one, the Cherokees are admitted to be a nation; and there is not a word in any of these solemn instruments, which has the most distant implication of the contrary. If the United States are not bound in this case, how is it possible that a party should ever be bound by its own admissions? The truth is, that if our country were bound to France, or England, by any stipulation, however mortifying to our pride, or disadvantageous to our interests, and the meaning of the obnoxious clause were supported by one-fiftieth part of the evidence by which it can be proved that the United States have recognized the national character of the Cherokees,no Statesman would risk his reputation by attempting to dispute or evade the meaning. We should be obliged to submit to inconveniences resulting from our own stipulations, till we could remove them by subsequent negotiations. If we have been overreached by the Cherokees in so many successive treaties: if they have had the adroitness to get from us repeated acknowledgments of their possessing a character and rights which they did not possess: if General Washington, and a long line of distinguished Statesmen, have made incautious admissions; and if, in this way, we have made a bargain which bears hard upon ourselves- still our hands and seals testify against us.- We must be more cautious the next time. 'He that sweareth to his own hurt, and changeth not,' is declared in Holy Writ to give one proof that he is an upright man, and will receive the approbation of God. In a word, if Washington and Knox, Hamilton and Jefferson, compromited (sic) the interest of this country, by indiscreet and thoughtless negotiations, we must gain wisdom by experience, and appoint more faithful and more considerate public agents hereafter.
Having inquired into the meaning of the title and preamble of the Treaty of Holston, let me now direct the attention of the reader to its provisions:
'ART. 1 There shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the whole Cherokee Nation of Indians.'
If the 'peace and friendship' were to be 'perpetual,' the future continuance of the 'Cherokee Nation of Indians' for an indefinite period, was taken to be a matter beyond all question. It seems clear also, that 'Indians' can constitute a 'nation.'- The word tribe when used to denote community living under its own laws, is of equal force with the word nation; and in this sense it is to be taken, wherever it occurs in the preceding discussion. But the Cherokee Nation had been divided from time immemorial, into seven clans; sometimes called tribes, and the Choctaw Nation into two such tribes. This fact occasioned some of the peculiar phraseology in the Treaty of Hopewell. As the seven clans, or tribes of the Cherokees were united under one government, they were all comprehended under the phrase of 'the whole Cherokee nation of Indians,' and the word tribe is not found in the treaty of Holston. The word nation, as applicable to the Cherokees, occurs no less than twenty-seven times, and always in its large and proper sense.
'ART. 2. The undersigned chiefs and warriors, for themselves and all parts of the Cherokee Nation, do acknowledge themselves and the said Cherokee Nation, to be under the protection of the United States of America; and of no other sovereign whatsoever; and they also stipulate that the said Cherokee Nation will not hold any treaty with any foreign power, individual State, or with individuals of any State.'
I remarked upon the Treaty of Hopewell, that it has always been a common thing for weak States to rely upon the protection of stronger ones. When a weak State acknowledges a superior, it is bound in good faith to act in accordance with that acknowledgement; but it is, in all other respects, independent of the superior. In other words, it retains all the rights, which it does not part with. What is to be understood by the Cherokees being under the protection of the United States, will very fully appear in the course of this investigation. In the very article now under review, the Cherokees bind themselves not to hold any treaty 'with any foreign power,' nor with any 'individual State.' This was a very material relinquishment of their natural rights; but it was supposed to be counter-balanced by various advantages secured to them by the treaty, particularly by the solemn guarantee in the seventh article, which will be considered in its order.
It is now contended by the statesmen of Georgia, that the United States had no power to make treaties with Indians 'living.' as they express it, ' within the limit of a sovereign and independent state.' Thus according to the present doctrine, General Washington and his advisers made a solemn compact, which they called a treaty, with certain Indians, whom they called the Cherokee Nation. In this compact, the United States bound the Cherokees not to treat with Georgia. Forty years have elapsed without any complaint on the part of Georgia, in regard to this exercise of the treaty-making power; but it is now found that the Cherokees are tenants at will of Georgia; that Georgia is the only power on earth that could treat with the Cherokees; and that they must now be delivered over to her discretion. The United States then, at the very commencement of our Federal Government, bound the Cherokees hand and foot, and have held them bound nearly forty years, and have thus prevented their making terms with Georgia, which might doubtless have been easily done at the time of the Treaty of Holston. Now it is discovered, forsooth, that the United States had no power to bind them at all. If such an interpretation is to be endured by an enlightened people in the nineteenth century, and if in consequence of it, the Cherokees are to be delivered over, bound and manacled, if this is to be done in the face of day, and before the eyes of all mankind, it must be expected that shouts and hisses of shame and opprobrium will be heard in every part of the civilized world! Pettifogging is not very honorable business when practised (sic) in a twenty shilling court; but what sort of pettifogging would this be? Has fraud or usurpation been perpetrated in the sanctuary of our dignified Senate, and by means of solemn treaties, ratified in mockery? the effect of which is to dispossess a 'nation' of its hereditary lands and Government, and to drive the individuals of which it was composed, (who are called in the preamble already cited, 'the citizens and members thereof')- to drive away these 'citizens' as outcasts and vagabonds?
But, such an interpretation, so insulting to the Cherokees and to the common sense of mankind, and so cruel in its operations, cannot be admitted. Washington was neither a usurper of unconstitutional power, nor an intriguing oppressor; nor were Ellsworth and his fellow Senators, either novices or cheats.