and Indians' Advocate
Wednesday, October 28, 1829
Vol. II, no. 29
Page 1, col. 4a
There are four remaining treaties to be examined. Two to them were negotiated by the distinguished general, who is now the Chief Magistrate of the United States, and one by the Secretary of War, who is now Vice-President of the United States. On these accounts, as well as their inherent importance, they are worthy of particular attention.
TTHIRD TREATY OF WASHINGTON; OR THIRTEENTH NATIONAL COMPACT WITH THE CHEROKEES.
This treaty was executed on the same day with the one next preceding;
viz. March 22, 1816, and signed by George Graham for the United States, and
six Cherokee Chiefs, of the Cherokee Nation. Being on a different subject
entirely, it was embodied in a separate document.
Art. 1. The boundary between those parts of the Creek and Cherokee Nations, which were west of the Coosa River, is agreed upon. The United States having obtained, by treaty, the Creek lands west of the Coosa and contiguous to the Cherokees, it became necessary to ascertain and establish their boundary between these nations. In the body of the article it is said, that the treaty of January 1806 (already described as the tenth compact,) "the United States have recognized a claim on the part of the Cherokee Nation to the lands south of the Big Bend, etc.
Art. 2. It is expressly agreed, on the part of the Cherokee Nation, that the United States shall have the right to lay off, open, and have the free use of, such rond, or roads," as shall be needed to open a communication through the Cherokee country north of the boundary now fixed. The United States freely to navigate all the rivers and waters, "within the Cherokee Nation."
Art. 3. "In order to preclude any dispute hereafter, relative to the boundary line now established, it is hereby agreed, that the Cherokee Nation shall appoint two commissioners to accompany the Commissioners, already appointed on the part of the United States, to run the boundary," etc.
Art. 4. In order to avoid delay hereafter, when the President of the United States shall wish to open a new road, under the grant of the second article of this treaty, the principle chief of the Cherokee Nation shall appoint one commissioner to accompany the commissioners appointed by the President "to lay off the road."
Art. 5. The United States agree to pay $25,500 to individuals of the Cherokee Nation, "as an indemnity for losses sustained by them, from the march of the United States troops "through that nation."
The treaty was duly ratified by President Madison and the Senate.
A very few remarks on this document will be sufficient.
The first article says, that the United States, in a treaty made ten years before, recognized a claim of the Cherokee Nation to land south of the Big Bend of the Tennessee. What claim? Doubtless such claim as the Cherokees made. But they never made any partial, limited or qualified claim to their lands. They never set up a title as tenants for the lives of the existing generation, or tenants for years or tenants at will. They simply, and always, claimed the land as their own; and this claim the U. States must have recognized, if they recognized any claim at all.
The fact was, that the article here referred to, as containing a recognition for the Cherokee claim, was the one by which the U.S. engaged to prevail on the Chickasaws to agree upon a certain boundary between them and the Cherokees. Thus, the friendly attempt to fix a boundary between these two Indian nations was justly construed ten years after wards, to be "a recognition of the claims of those nations to the lands on each site of the boundary."
By article second it is agreed, on the part of the Cherokee Nation, that the United States shall have the sight to lay off roads, in a certain part of the nation, and in a prescribed manner. Of course, it must be inferred, that the United States had not this right before; that the assent of the Cherokee Nation was necessary to invest the United States with the right; and that it must, even when granted, be exercised expressly in the manner which the treaty prescribed. This article speaks, also, of river and waters, "within the Cherokee Nation;" and stipulates, that the citizens of the United States may freely navigate these waters. On looking at the map of the Cherokee country, as it then existed, the reader will find, that besides the Hiwassee, the Oostanawia, the Coosa, and many smaller streams, that noble river, the Tennessee, took a sweep of more than 130 miles through the Cherokee Nation. There was good reason to wish for the privilege of navigating these waters, but how absurd to resort the treaty-making power for the purpose of obtaining it, if the country really belonged to Georgia and the neighboring States.
By articles 3d and 4th, it appears, that the Cherokee nation had a government, which the United States acknowledged, as being always in existence, and always competent to transact any national business.
TREATY OF THE CHICKASAW COUNCIL HOUSE; OR FOURTEENTH COMPACT WITH THE CHEROKEES.
This document was signed on the 14th of September, 1816. This title
is important, and I must cite it at length:
"To perpetuate peace and friendship between the United States and the Cherokee tribe or nation of Indians, and to remove all future causes of dissention which may arise from indefinite territorial boundaries, the President of the United States of America, by Maj. Gen. Andrew Jackson, General David Merriwether, and Jesse Franklin, Esq. Commissioners Plenipotentiary on the one part, and the Cherokee Delegates on the other, covenant and agree to the following articles and conditions, which [continued on pg. 4 col. 1a] when approved the Cherokee Nation, and constitutionally ratified by the Government of the United States, shall be binding on all parties."
It is always presumed, that the President of the United States will give a fair and natural construction to all public engagements made by the proper authority. There are special reasons why the present incumbent of that high office should respect the document I am now considering and a similar one, which was executed the following year.
The reasons for the treaty, assigned in the titled above quoted, are good and sufficient reasons; and such as commend themselves to every man's heart and conscience. " To perpetuate peace and friendship" between neighboring communities is a benevolent work. The importance of which much depends on the durability of the relation to which such phraseology is applied; and to remove all future causes of dissention which may arise from "indefinite territorial boundaries," is a work scarcely less benevolent than the other. This is the very language, which would be used on a similar subject, by Russia and Prussia, or any two contiguous nations in Europe.
Further, it appears by the very title, as well as by the subsequent proceedings, that this treaty, though made in the immediate neighborhood of the Cherokee country; and signed by fifteen chiefs, was not considered as binding, till it should be "approved by the Cherokee Nation." When this should have been done, and the treaty should have been ratified by the Government of the United States, it would be "binding on all parties."
It is humiliating to be obliged to prove, that parties to a treaty are bound by it. To pretend to the contrary is an utter perversion of reason and common sense. There are persons, however, to whom express covenants seem stronger than unavoidable implications. Such persons are requested to observe, that Major General Andrew Jackson and his colleagues, did expressly, in so many words, "covenant and agree" that the treaty should "be binding on all parties." Why is it not binding then? Where is the promised perpetual peace, if the weaker party is to be outlawed? Where is the benefit of definite territorial boundaries if these boundaries are not respected?
The following is a brief abstract of the treaty;
ART. 1. 'peace and friendship established.'
ART. 2. The western boundary described. It curtailed the Cherokee country on the southwest, and gave to the United States a tract of land, now in the State of Alabama.
ART. 3. The Cherokees relinquish and cede the land just mentioned; and in consideration thereof, the United States agree to pay $5,000 in 60 days and $6,000 a year, for ten successive years.
ART. 4. The line to be plainly marked.
ART. 5. The Cherokee Nation to meet the commissioners of the United States at Turkey-Town, on the 28th of the same month, "there and then to express their approbation, or not, of the articles of this treaty," but, if the nation did not assemble, it would be considered "as a tacit ratification."
On this treaty I would observe, that there are several things in it worthy of special commendation; viz: the solicitude to avoid future difficulties, the uncommon care manifest in article fourth, (which a regard to brevity prevented my citing at large,) to have the line of territory made plain; and the repeated and explicit acknowledgement, that the Cherokees were to express their approbation of the treaty, before it would be binding. Of course, they were to be dealt with as intelligent and moral beings, having rights of their own, and capable of judging in regard to the preservation of those rights.
It must be presumed, that the Commissioners of the United States were at Turkey-Town on the 28th of September, the day appointed for the ratification; but whether the Cherokees, were dilatory in assembling, or whether strong arguments were necessary to obtain their consent, does not appear. Six days afterwards the transaction was closed, as is proved by the following certificate:
"Ratified at Turkey-town by the whole Cherokee Nation in Council assembled. In testimony whereof, the subscribing Commissioners of the United States, and the undersigned Chiefs and Warriors of the Cherokee Nation, have hereto set their hands and seal, this fourth day of October, in the year of our Lord one thousand eight hundred and sixteen."
Signed, ANDREW JACKSON
and nine Cherokee Chiefs, in the presence of the venerable Col. Meigs, two Interpreters, and Major Gadsden, of the United States army, who subscribed as witnesses.
The treaty was ratified by President Madison, and the Senate.
I close this number by requesting all our public men to mediate upon the following words of a very sagacious King: Remove not the old land mark; and enter not into the fields of the fatherless: that is, of the weak and defenseless; for their Redeemer is mighty: He shall plead their cause with thee.