and Indians' Advocate
Wednesday, October 14, 1829
Vol. II no. 27
Page 1, col. 5a (continued to) Page 4, col. 2a.
(This heading is not repeated in the original- From the National Intelligencer. Present Crisis in the Condition of the American Indians.)
I proceed in the consideration of the Treaty of Holston. The third article provides, that "the Cherokee nation shall deliver " up "all persons who are now prisoners, captured by them from any part of the United States;" and "the U. States shall restore to the Cherokees all prisoners now in captivity, whom the citizens of the United States have captured from." A period of about nine months was allowed for a compliance with this article. Here the most entire reciprocity exists, precisely as it is found, usually in treaties of peace between European Powers.
"Art. 4. The boundary between the citizens of the United States and the Cherokee Nation is and shall be as follows" [ Here the boundary is described, which is, in part, the same with that in the Treaty of Hopewell, but the Cherokee country on the northeast is considerably curtailed. Here had been the seat of war during the interval between the two treaties.- A tract, which is now the central part of Tennessee, and which probably contains a population of more than 200,000 souls, was still retained by the Cherokees.]
The article provides that the boundary shall be ascertained and marked, and then proceeds thus:
"And, in order to extinguish forever all claims of the Cherokee Nation, or any part thereof, to any of the land lying to the right of the line as above described, beginning as aforesaid, at the Currahee Mountain, it is hereby agreed that, in addition to the consideration heretofore made for the said land, the United States will also cause certain valuable goods to be immediately delivered to the undersigned chiefs and warriors, for the use of their nation; and the said United States will also cause the sum of $1,000 to be paid annually to the said Cherokee Nation. And the undersigned chiefs and warriors do hereby, for themselves and the Cherokee Nation, their heirs and descendants, for the consideration above mentioned, release, quit-claim, relinquish, and cede all the land to the right of the line described and beginning as aforesaid.
One object of the treaty was declared in the preamble to be to "ascertain the limits of the Cherokees." In the article just quoted, the limits are defined on the north and east; that is, on those sides where the white settlers would live, near the borders of the Cherokee country. On the south and west the Cherokees were limited by the country of their Creek and Chickasaw neighbors; so that there would have been no propriety in even mentioning the subject here.
At the close of the article, the Cherokee chiefs, " for themselves and the whole Cherokee Nation, their heirs and descendants, release, quit-claim, relinquish and cede" a certain proportion of their country, that very country which had been called "hunting grounds" in the treaty of Hopewell, and of which, as it is now pretended, the Cherokees were tenants at will. Was it ever before heard that a tenant at will released and ceded land to its rightful owner?
The phraseology here used not implies that the word allotted, in the previous treaty, meant not more than that the boundary of the Cherokee country was fixed, or defined by the articles in which it is used but, it implies also, in the strongest manner, that the sovereign powers of the Cherokees over their territory was unquestionable. The word "cede" is the most common and operative word in all transfers of territory from one (begin page 4) nation to another. Unless explained and limited, it conveys the right of sovereignty. Thus, in cessions of small portions of land to the General Government, for Navy Yards, &c. the several State are in the practice of reserving certain rights; such as the right of entering to apprehend criminals, &c. implying that the word "cede" would "ex vi termini", convey to the General Government all the rights of sovereignty. But no party can convey what it does not possess; and it would have been absurd for the United States to ask and accept a cession without admitting that the Cherokees had power to make one. This article expressly declares that the agreement was entered into, the cessions make, and the compensation given "to extinguish forever all claims of the Cherokee Nation" to the lands thus ceded. The Cherokees are acknowledged, then, to have had claims, not canceled by war, not swept away by the superior force of the United States, never before surrendered claims which the solemn sanction of treaties was deemed necessary to extinguish.
"ART. 5. It is stipulated and agreed that the citizens and inhabitants of the United States shall have a free and unmolested use of a road from Washington District to Mero District, and the navigation of the Tennessee River."
This is another very curious provision, if we are to believe that the Cherokees are merely tenants at will, and the people of the United States the rightful owners. But upon the only tenable ground, viz. that the Cherokees had a perfect title to the soil, with undoubted sovereignty over it, the article is intelligible and reasonable. The people of the United States wanted a free passage through a particular part of the Cherokee territory, and, as the parties now sustained amicable relations, such a passage was granted by a treaty stipulation.
"ART. 6. It is agreed on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade."
By the Constitution of the United States it had been provided, that Congress should have power to regulate commerce "with the Indian tribes." This policy had been pursued in the Treaty of Hopewell, and was doubtless chosen wisely, and with a view to benefit the Indians.- It was not binding upon them, however, till they voluntarily consented to it.
"ART. 7. The United States solemnly guarantee to the Cherokee Nation all their lands not hereby ceded."
This is the most important article in the treaty. The Cherokees had yielded some important rights. They had agreed not to treat with any foreign Power. They had committed the regulation of their trade to the United States. They had admitted the United States to participate in the navigation of the Tennessee; and had granted a free passage through a certain part of their country to the citizens of the United States. They had ceded a portion, though not a very important one, of their territory.
On the other hand, the United States engaged to protect the Cherokees, to promote their civilization, as will hereafter be seen, and especially to guaranty the integrity and inviolability of their territory. In a world full of outrage, fraud, and violence, it is a good advantage for a weak State to obtain a solemn guaranty of a powerful neighbor, that its rights and sovereignty shall be safe. All this is implied by guaranty. The United States solemnly engaged to preserve and defend the Cherokees against all foreign Powers, (a colony of Spain being then in the neighborhood) against the States of Georgia, and North Carolina, against the United States in their confederative capacity, and against all whites who should commit aggressions upon the Cherokees.
The word guaranty can mean no less, unless limited by the subject or context. If Bonaparte guarantees the integrity of Switzerland from aggression and invasion, whether the danger arises from Austria, Prussia, Holland, or even France itself. It is the chosen and appropriate word to express the utmost security, which can be gained or pledged to one party by the power and good faith of another.
Upon the guaranty of the United States, the Cherokees have relied, with unshaken constancy, since the year 1791. Within a few months their confidence has been shaken; and they are now in a state of great solicitude and anxiety. It remains to be seen whether a treaty will bind the United States to a weak and dependent ally, or whether force is to be the only arbiter in the case.