and Indians' Advocate
Wednesday, December 30, 1829
Vol. II, no. 38
Page 1, col. 5b-Page 2, col. 3a
From the New York Observer.
In case of Goodell vs. Jackson, which came before the Court of Errors in this state, in February 1823, and is reported in 20 Johnson, 693-734, Chancellor Kent expressed the following opinions respecting the rights of our Indians. We will only say, if Indians, reduced so low in numbers and character as are the miserable remnants of tribes in this state, are still sovereign communities, having the right to govern themselves by their own laws, the claim of the Cherokees to this distinction must be past all question.
"The Oneidas, and the other tribes composing the Six Nations of Indians,
were originally, free and independent nations. It is for the counsel,
who contend that they have now ceased to be a distinct people, and become completely
incorporated with us, and clothed with all the rights, and bound to all the
duties of citizens to point out the precise time when that event took place.
I have not been able to designate the period, or to discover the requisite
evidence of such an entire and total revolution. Do our laws, even at
this day, allow these Indians to participate equally with us, in our civil and
political privileges? Do they vote at our elections, or are they represented
in our legislature, or have they any concern, as jurors or magistrates, in the
administration of justice? Are they on the other hand, charged with the
duties and burthens of citizens? Do they pay taxes, or serve in the militia,
or are they required to take a share in any of the details of our local institutions?
Do we interfere with the disposition or descent, or tenure of their property
as between themselves? Do we prove their will, or grant letters of administration
upon their intestate's estates? Do our Sunday laws, our school laws, or
poor laws, or laws concerning infants and apprentices, or concerning idiots,
lunatics, or habitual drunkards, apply to them? &c.
* * * * * *
Through the whole series of our colonial history, these Indians were
considered as dependent allies, who advanced for themselves the proud claim
of free nations, but who had voluntarily, and upon honorable terms placed themselves
and their lands under the protection of the British government. The colonial
authorities uniformly negotiated with them, and made and observed treaties with
them, as sovereign communities, exercising the right of free deliberation and
action; but, in consideration of protection, owing a qualified subjection, in
a national, but not in any individual capacity, to the British crown.
* * * * * *
In 1776 Congress resolved that they would chastise the Senecas, who had
joined the enemy, and would reduce them to terms of peace; and when some Seneca
chiefs appeared at Philadelphia, they directed the Board of War to inquire,
whether they came in the character of representatives or ambassadors of their
nation. And when in 1779, Congress had resolved upon terms of peace with
the Indians, the conditions were such as would be dictated to a public enemy,
known as such by the laws of war; they had not the remotest resemblance to the
terms or spirit of a negotiation with citizens or subjects who had broken their
allegiance. In 1783, Congress expressly waived the right of conquest over
the Indians, and recommended proffers of peace and a friendly treaty, for the
purpose of receiving them into favor and protection.
* * * * * *
In 1794 there was another treaty made between the United States and the Six Nations, in which perpetual peace and friendship were declared between the contracting parties, and the United States acknowledged the lands reserved to the Oneida, Onondaga, and Cayuga nations, in and by their treaties with this state, to be their property; and the treaty contains this provision, which has a very important and a very decisive bearing upon the point under discussion: The United States and the Six Nations agree, that for injuries done by individuals, on either side, no private retaliation shall take place, but complaint shall be made by the injured party to the other; that is, by the Six Nations, or any of them, to the President of the United States, and by or on, behalf of the President, to the principal chiefs of the Six Nations, or of the nation to which the offender belongs. What more demonstrable proof can we require, of existing and acknowledged sovereignty residing in those Indians? We have here the forms and requisitions peculiar to the intercourse between friendly and independent states, and they are conformable to the received institutes of the law of nations. The United States have never dealt with these people, within our national limits, as if they were extinguished sovereignties. They have constantly treated with them as dependent nations, governed by their own usages, and possessing governments competent to make and to maintain treaties. They have considered them as public enemies in war, and allied friends in peace. If mere territorial jurisdiction would make the Six Nations citizens of this state, the same effect must have been produced as to the numerous tribes of Indians included within the vast territorial limits of the United States; and it is worth a moment's attention to observe the relations existing between the United States and the Indians, to the south and to the west.
[The Chancellor then proceeds to consider the treaties of the United States with the southern and western Indians, and particularly those with the Cherokees, which have been so fully examined in the numbers of William Penn, and arrives at the same conclusion with that distinguished writer, that in the face of such treaties, it is idle to contend that these Indians are not "sovereign tribes."]
To the wish expressed in the following paragraph; every honest man will say Amen.
When the time shall arrive for us to break down the partition wall between us and them, and to annihilate the political existence of the Indians as nations and tribes, I trust we shall act fairly and explicitly, and endeavor to effect it with the full knowledge and assent of the Indians themselves, and with the most scrupulous regard to their weakness and prejudices; and with the entire approbation of the government of the United States. I am satisfied, that such a course would be required by prudence, and would become necessary, not only for conscience sake, but for the reputation of our justice.
[From the following paragraph, it will be seen that so late as the year 1813, the legislature of New York has recognized the distinct national character of the Oneidas, a tribe who do not reckon, in all one thousand souls!]
So late as the 5th of April, 1813, the legislature authorized the government to hold a treaty, on the part of the people of this state, with the Oneida Nation of Indians, and with any other Indian nations or tribes within this state. And here let us observe who were to be the contracting parties to this treaty, by the very words of the statute. They are the People of this state on the one part, and Oneida Nation on the other. What language can be more unequivocal to the show, that the Oneida Nation was then subsisting as a distinct community, recognized in a national character, & as competent to treat in that character, and that they did not form an integral part of the people of this state. Indeed, so clear does this point appear to my judgement, that if it were not for the great authority of the opinion which we are reviewing and for the able argument which we have heard, I should suppose that I had been combating a shadow.
CHEROKEES.- The situation of the Cherokee, Creek and other tribes of the Southern Indians is, at this time, particularly interesting. The Cherokee Nation presents a solitary instance of a regular government, a written language, and a considerably advanced state of civilization among Indians.
They have their constitution of their legislative assembly in two branches consisting of their committee or lower house and their council or senate, & an executive, consisting of the Principal Chief and the Assistant Principal Chief, corresponding in a measure to our President and Vice President. We have before us the address of the Principal Chief on the opening of the Legislature- and a number of the Cherokee Phoenix, a national paper printed partly in the Cherokee language and partly in English, which gives a very regular report from day to day of their proceedings. The whole of their internal affairs appear to be managed with an intelligence and regularity which would do no discredit to a government longer established and people claiming to be far more civilized. This is an experiment in the civilization of the aborigines which promises success-and if successful, would go in some measure toward repaying these abused people for some of the numerous injuries which have been inflicted upon them by their white brethren. They however require rather to be encouraged and aided in their efforts by their more experienced neighbors, the whites- at the best, they labor under every disadvantage and discouragement. But if in stead of endeavoring to bring them further and further within the pale of civilization, they be driven from their territory and forced into remote and barren regions, they must inevitably return to a state far more degraded than the original rudeness in which our ancestors found them-a state in which will cling to them all the vices of civilized man with but few of his virtues. As inevitable as this result would be, and as disgraceful to ourselves and destructive to the Indians, there will doubtless be an attempt during the present session of congress to effect their forcible removal. Our readers will notice on this subject the very able and excellent articles published by a writer under the signature of "William Penn," who presents the subject in too strong and forcible a light to admit of any addition by us. We give, however, below a couple of extracts showing the nature of their legislative proceedings. The first is from the message of the Principal Chief before referred to, and the other from an account of their proceedings as reported in the Cherokee Phoenix. _Ct. Cour.