and Indian's Advocate
Wednesday, November 25, 1829
Vol. II, no. 33
Page 1, col. 1b-5a
From the National Intelligencer.
At the close of the Revolutionary War, great controversies arose, in
regard to the disposal which should be made of the unappropriated lands lying
within the limits of the United States, as defined by the treaty of 1783:
Some of the States contended that the vast tracts lying to the West and Northwest
of the portion inhabited by whites should be made a common land, and held for
the common benefit; as the whole had been secured by the common privations and
sacrifices. Other States were determined to retain all the territory which
fell within the limits described in their original charters. It is not
my intention to enter at all into a dispute which was put at rest, as a practical
matter, by various conventional arrangements, made between particular States
and the U. States, from 1781 to 1802. My object in adverting to the subject
here is, that the reader may be aware of the existence of such controversy.
Virginia set an example of public spirit, by relinquishing to the United States
the vast tract Northwest of the river Ohio; and it was contended that Georgia
ought to relinquish all the lands on her western waters. These relinquishments,
actual or contemplated, were not considered as affecting, or likely to affect
the Indian title. Every cession was subject to this title. In other
words, every party was considered as bound to deal justly with the Indians,
and to recognize their territorial rights.
On the supposition that Georgia had, at the conclusion of the American war, an unquestionable right, on every ground of law and honor, to all the land within the limits of the King's charter, subject only to the Indian title, it would remain to inquire, how far their jurisdiction could be fairly and properly extended, over the Indians, or their country. To me it seems perfectly clear that Georgia could have claimed no jurisdiction at all over the Creeks or Cherokees, or over their territory. They were, respectively, a separate people, living under their own laws, upon their own soil. No argument, but that of force, could have been adduced in favor of taking away their possessions; and if, they had been able to defend themselves, no argument would ever have been thought of. Could the Cherokees now bring into the field a formidable array of bayonets, all these arguments about the hunter state would be suffered to repose in quiet, with other lumber of the schools. The more savage the Indians were, the less inclined the people of Georgia would be to have a quarrel with them; and the more readily would all their territorial and national rights be acknowledged.
The claims of Georgia, which are set forth as being supported by the law of nations and the King's charter, have been examined; and, unless I am mistaken, have been shown to be altogether groundless, when compared with the strong title of immemorial possession. But there is no need of resting the case here, however safe it would be here to rest it.
I therefore proceed to show, that Georgia has, during her whole history, till within a very few years, admitted the national character and territorial rights of the Creeks and Cherokees; and that she is bound, by numerous public acts performed by her in the very capacity of which, she is most proud and jealous, (that of a sovereign and independent State) for ever to admit and respect the rights of the Cherokees, unless these rights shall hereafter be voluntarily surrendered.
In the year 1733 James Oglethorpe commenced a settlement on the site, where Savannah now stands. In his first letter to the corporation whose agent he was, dated February 10th, he says: "A little Indian nation, the only one within fifty miles, is not only in amity, but desirous to be subjects to his Majesty King George, to have lands given them among us, and to breed their children at our schools. Their chief and his beloved man, who is the second man in the nation, desire to be instructed in the Christian religion." It appears from McCall's History of Georgia, (on which I shall rely as authority for several succeeding statements) that, this little tribe of Indians, which is not extinct, must have received a splendid account, of the power and benevolence of the British King. How much they understood of what was implied in becoming his subjects cannot be know. They were doubtless informed, that the settlers were intending to live in a compact manner, and to have schools and preaching; and that the Indians could act wisely, if they would be friends to the English, and live in the same manner. They might naturally, therefore, have been pleased with the notion of taking farms for cultivation, side by side, with the new settlers. This must have been the meaning of their having lands given them among the settlers. For the old English doctrine of seizing in fee and of the fee being in the King, was too metaphysical an idea to have found a lodgment in their unsophisticated heads. Indeed, it is quite ridiculous to embarrass this question with the abstract terms, and nice distinctions, which had their origin in the feudal tenures of Europe. The whole philosophy, and the morality of the Indian title, as opposed to the encroachments of the European settlers, might be thus expressed by the Indians: "These lands are ours. We had them from our fathers, They are not yours. Neither you, nor your fathers, nor your King, ever had them. When we consent to your taking them, they will be yours. Till then, they belong to us."
If the little tribe of Indians, who had the possession of the lands at the mouth of Savannah River, consented to the settlement of Oglethorpe; and if their consent was obtained fairly and honorably, (which I am inclined to question) then the founder of the State of Georgia had a rightful possession. The lawfulness of his possession, as against the Indians, was founded altogether upon their consent; while, in regard to the whites of South Carolina, he might justly plead the King's charter.
"But as this tribe was inconsiderable" says the historian, "Oglethrope judged it expedient to have the other tribes also, to join with them in the treaty." So it seems, that Oglethorpe, supposed the Indians to be capable of making a treaty, as all his predecessors has [sic] done, from the discovery of America to that day, as all his successors continued to do, till this same Georgia controversy has, within two years past led to the discovery, that Indians are capable of being treated with. It is morally certain, that the colony of Oglethorpe would have been of short duration, if he had told the Indians, that he, acting under the King of Great Britain, was the owner of all the lands from Savannah to the Altamaha, and then westward to the other side of the world; and that he could not form any compact with them, because they were incapable of making a bargain. Had the whites distinctly avowed such principles of morality and law, they would never have established themselves on this continent, beyond the reach of their guns. No other refutation of so monstrous a system seems necessary, than its utter impracticability, at the commencement of the settlements. In other words, the emigrants from Europe could never have become strong enough to throw off all the restraints of justice and honor, and disavow the most obvious principles of moral honesty, unless they had pretended to be honest and just during a period of two hundred years.
Oglethrope, having found an interpreter, summoned a meeting of the chiefs to hold a Congress with him at Savannah, in order to obtain their consent to the peaceable settlement of the colony." About fifty chiefs assembled. Oglethorpe represented to them "the great power, wisdom, and wealth of the English nation, and the many advantages that would accrue to the Indians in general; from a connexion and friendship with them; and, as they had plenty of lands, he hoped they would freely resign a share of them to his People, who were come to settle among them for their benefit and instruction."
This is the fist overture of the colonists to the assembled Indians; and it certainly does not look much like demanding the whole country, in the name of the King of England. It seems much more like a humble entreaty for permission to remain, for the purpose of doing good to the natives. The consent of the lords of the soil was obtained, and a treaty was made, of which the following is an abstract:
TREATY OF SAVANNAH.
The preamble recites the authority of Oglethorpe, and says that certain
"articles of friendship and commerce" were made between him "and the chief men
of the Nation of the Lower Creeks," viz.
1. The colony engages to let traders carry good into the "Creek Nation" for sale.
2. The colony engages to make restitution to the Creeks for any injury done to them by white traders, and to punish the offenders according to English law.
3. If the Creeks should not treat the traders well, the colony will withdraw the English trade.
4. The Creeks say, that they are glad the English have come, and add these memorable words: "Though this land belongs to us, (the Lower Creeks) yet we, that we may be instructed by them, (the English,) do consent and agree, that they shall make use of and possess, all those lands which our nation hath not occasions to use: Provided always, that they, upon settling every new town, shall set out for the use of ourselves and the People of our nation, such land as shall be agreed upon between their beloved men, and the head men of our nation; and that these lands shall remain to us forever."
5. The Creeks agree not to do injury to any of the traders: but if any Indians should transgress this article, the nation will deliver them up, to be punished according to English law.
6. The Creeks agree to apprehend and restore runaway negroes.
7. The Creeks to give no encouragement to white settlers from other European nations.
A schedule of prices of articles, exchanged for peltry, was also agreed upon.
This treaty was ratified by the corporation, in the City of London, October 18, 1733.
So far as appears, Oglethrope was entirely fair and honest in this whole transaction. The Indians confided in all his statements; and both parties doubtless supposed that the colony would conduce to the permanent advantage of the Indians, and that they and the settlers would live together in friendship, according to the import of the preceding articles. The corporation, in ratifying the treaty, declare that they are greatly desirous to maintain an inviolable peace to the world's end.'
It is to be remembered, that all treaties with the Indians were written by the English, and that there is no probability that they made the expressions stronger against themselves, than they actually were. Yet here is a firm and decided protestation of the Creeks, that the grant which they made out of friendship, should never be construed as an admission that they had no original title. They also took care to provide that no new settlement should be made without their consent. If the colony intended to rely upon the right of the English King, here was the time and place to have asserted it, and to have obtained, if possible, the acknowledgement of it from the Indians.
The principal speaker in this council was a Creek chief, called Toinochichi. When Oglethorpe returned to England, in the Spring of 1734, this chief was induced to accompany him. On being introduced to King George, he made a flourishing speech, in which, however, he does not admit that the King of England is his liege lord and sovereign. He gave the King some eagles feathers, "as a token of everlasting peace;" and concluded by saying; "Whatever words you shall say unto me, I will faithfully tell them to all the Kings of the Creek Nation." This is all the allegiance he promised. King George expressed his kind regards, gave thanks for the eagles' feathers, and concluded by saying, "I shall always be ready to cultivate a good correspondence between the Creeks and my subjects, and shall be glad on any occasion to show you marks of my particular friendship."
Here is no arrogant claim of sovereignty, on the ground of the divine right of Kings, or any other factitious title. Indeed, the King of England implicitly says, that the Creeks are not his subjects.
When the old chief Tomachichi dies in 1739, he charged his People to remember the kindness of the King of England, and hopes they would always be friendly to his subjects; thus making the very distinction which the King himself had made.
In the year 1736, Oglethorpe made a treaty with the Spanish Governor of St. Augustine, in which the second article reads as follows: "In respect to the nations of free Indians, called Creeks, I will use my utmost amicable endeavors, upon any reasonable satisfaction given them, to prevail with them to abstain from any hostilities whatsoever, with the subject's of his Catholic Majesty."
Here is evident that Oglethrope saw, as no man in his circumstances could help seeing, that the Creeks were an independent People; and that they must decide for themselves whether they would go to war with the King of Spain or not. He would advise them, however, to accept a reasonable satisfaction.