and Indians' Advocate
Wednesday, November 11, 1829
Vol. II, no. 31
Page 2, col. 1a-3a
From the National Intelligencer.
It has appeared, in the preceding discussion, that the United States have entered into solemn engagements with the Cherokees, by which we are bound, as a people, to defend their title and their sovereignty, and to protect them from every species of encroachment and aggression. If this be not the obvious meaning of numerous and express stipulations, it will be impossible to frame articles in the English language, which shall express any meaning whatever.
But Georgia complains that the Government of the United States transcended its powers in making these engagements, which are therefore to be considered null and void. The reader must bear in mind, that this complaint of Georgia is not of long standing. Indeed I am not certain that the legislature has expressed it; but the leading men of that State, and some of the newspapers, are loud in making and repeating it. `Till very recently, as was mentioned in my last the authorities of Georgia have been urging the United States to make treaties with the Indians.
In order to come to a full understanding of this case in all its bearing, let us inquire how the controversy would present itself, if the old thirteen States, after obtaining their independence, had never formed any system of confederation whatever, and each State were entirely, and in all respects,independent of every other State. The whole question at issue would then lie between Georgia and the Cherokees. Neither South Carolina, nor any other State, would have any right to interfere, however oppressively Georgia might conduct herself toward the Indians; unless, indeed, South Carolina, or some other State, had made a treaty with the Cherokees, of the nature of an alliance offensive and defensive. On this supposition, both the allies would have a right, by the laws of nations, to speak to Georgia, and to be heard. But we will suppose, that the Cherokees had made no treaty with any community upon earth, and were, as to their mode of living precisely in their present condition; that is, peaceably engaged in agricultural pursuits and providing for their own families by the labor of their own hands.
In these circumstances, the people of Georgia ask the Cherokees to remove; who, in their turn, demand the reasons of so extraordinary request. And here let me say, no good reasons can be given; no reasons which an honest man would not be ashamed to give in any private transaction. But I will fairly state all the reasons, which have come to my knowledge, and would wish the reader to give them every article of weight to which they are entitled.
The Georgians say to the Cherokees: "We are civilized people; you are vagrant, hunting and savage people. By virtue of this distinction, the lands which you occupy, and which your fathers called their hunting grounds, belong in reality to us; and we must take possession. The writers on the law of nations bear us out in the demand."
To such a statement the Cherokees might justly reply; "We are not about to dispute as to your being a civilized people, though the manner of urging this demand of the houses and lands of your poor neighbors, does not argue great modesty or benevolence. We do not profess to be learned in the law of nations; but we read the Bible, and have learned there some plain principles of right and wrong.- The Governor of the world gave us this country- We are in peaceable possession. We have never acknowledged any earthly lord, or sovereign. If our Creator has taken away our land and given it to you, we should like to see some proof of it, beside your own assertion. We have read in the book, which we understand you to acknowledge as the word of God that "to oppress a stranger wrongfully" is a mark of great national wickedness.
"But we are not the sort of people that you take us to be. We are not vagrants, like some tribes of which we have heard; nor were our fathers. They always had a fixed place of residence. And as to our wandering about, we have not the time. We are busy with our crops, and many of us do not go so far as our nearest county court once a year, unless called out as jurymen. We do not hunt. Not a family within our bounds derives its subsistence from the chase. As to our being savages, we appeal to the white men, who travel on our turnpike roads, whether they receive any ill treatment. We have a legislature and judiciary, and the judges of our supreme court are very rigid in punishing immorality. We have herds of cattle, farms and houses, mills and looms, clothing and furniture. We are not rich; but we contrive, by our industry, to provide against hunger and nakedness; and to lay up something comfortable for winter. Besides these things, we have schools and places of public worship. Judge ye, whether we are such a sort of people as the writers on the laws of nations had in their minds, when they talked of vagrants, hunters, and savages.
To this the Georgians rejoin: "But, you had no business to betake yourselves to an agricultural life. It is a downright imposition upon us. This is the very thing that we complain of. The more you work on land, the more unwilling you are to leave it.-- Just so it is with your schools; they only serve to attach you the more strongly to your country. It is all designed to keep us, the people of a sovereign & independent State, from the enjoyment of our just rights. We must refer you to the law of nations again, which declares that populous countries, whose inhabitants live by agriculture, have a right to take the lands of hunters and apply them to a better use.
In answer to this legal argument, the Cherokees have only to say, that, even if Vattel had the power, by a flourish of his pen, to dispossess a nation of its patrimonial inheritance, the present case does not come within the limits which he has prescribed.- Georgia is not populous. She has many millions of acres of unoccupied land. The Cherokees are not an "erratic people," to use the phrase of Vattel, so that neither part of the case answers to the description.
When Georgia shall have a hundred souls to the square mile; (and her soil is capable of sustaining a larger number than that;) the Cherokees may have four times as many to the square mile as Georgia now contains:
If anyone has the curiosity to read what Vattal has said on this subject, he will find it in section 81 and 209; where he will also find a commendation of the manner in which the Puritan settlers of New-England, and the great founder of Pennsylvania, obtained possession of the lands of the natives, viz: by the consent of the occupants and not by reliance on the charters of kings.
Thus stands the case on the law of nations; and if Vattel were admitted as absolute authority, and the Cherokees were left to their naked right, undefended by any compact, either with Georgia or the United States, they would have nothing to fear. No respectable lawyer, unless he is entirely deranged in his intellect, as a consequence of violent party feelings, will say that the doctrine of Vattel would take the lands of the Cherokees, and give them to Georgia.
But it is added, that the Cherokees are in the chartered limits of Georgia; and it is triumphantly asked. "Cannot Georgia govern her own territory? Is she not entitled to her own property?" But this statement of the case is a mere begging of the question. It is not admitted that the Cherokees are not, or ever were, in the State of Georgia, in any such sense as is implied by the confident tone of these questions. They have never acknowledged themselves to be in the State of Georgia. The laws of the United States, and the 14th article of the treaty of Holston, declare that Indian territory is not within the jurisdiction of any State, nor within the jurisdiction of any territorial district of the United States. It seems, however, that our national statuebook is of very light authority, when compared with the supposed conclusions of a philosophical writer, whose theories are produced as the arbiters of a people's destiny.
Let me ask here, whence did the Secretary of War derive the power of repealing an act of Congress? This is a plain question; and the people of the United States would like to receive a plain answer. Where did he derive the power to set aside existing treaties? The treaties and laws are positive and peremptory in declaring that the Cherokees are not under the jurisdiction of Georgia, nor of any other State, nor of the United States; that citizens of the United States have no right to enter the Indian country except in accordance with treaty stipulations, that it is a high misdemeanor, punishable by fine and imprisonment, for any such citizen to attempt to survey Indian lands, or to mark trees upon them; and that the Indian title cannot be extinguished, except by the consent of the Indians, expressed by a regular treaty. Yet the Secretary of War seems never to have known that any such laws or treaties are in existence. Is he not aware of all this? Or does he really think he has power to annul treaties and repeal laws, according to his sense of convenience and propriety?
But this is a digression. Having shown, as it seems to me, that Georgia can gain nothing by an appeal to the law of nations. I propose to inquire, briefly, what support she can derive from the charter of the King of England.