and Indians' Advocate
Wednesday, January 20, 1830
Vol. II, no. 40
Page 1, col. 5c-Page 2, col. 4b
From the National Intelligencer.
From the preceding investigation it is manifest, that the Cherokees can plead against the claims of Georgia, not only that best of titles, immemorial occupancy, fortified as it is by the solemn guaranty of the United States, in which guaranty the faith of Georgia is pledged with that of every other state in the Union; but they can plead, also, the repeated and solemn acts of Georgia herself as an independent state,--acts, which stand forth as most convincing proof that the national character of the Indians was acknowledged by that state, and their rights of territory regarded as indisputable.
It is contended, however, that the United States, are bound to extinguish the Indian title to all lands, which are now claimed as belonging to Georgia. This obligation is supposed to be derived from the compact of 1802.
In one of my previous numbers it was stated, that a controversy existed, at the close of the Revolutionary War, in regard to the question, whether the United States, in their federative capacity, or the several states, in their independent character, had the most equitable claim, to lands, which had never been settled by whites, and which lay within the chartered limits of the states respectively. This claim, as preferred by either party, was merely the right of purchasing lands of the Indians, to the exclusion of all other purchasers except the claimants, with the right of jurisdiction over the territory after it should have been thus purchased. If, however, there were any lands, which had never come into the actual possession of whites, and which did not belong to any nation of Indians, such land would be, in the strictest sense, unappropriated, and the possession of them and jurisdiction over them might properly be assumed without delay, by the United States or the several states, accordingly as the claim should be settled between these parties.
I have nothing to say of the merits of this controversy, as between the United States & Georgia, it was settled by the compact of 1802, which I will now describe.
James Madison, Albert Gallatin, and Levi Lincoln, commissioners of the
United States, & James Jackson, Abraham Baldwin, and John Milledge, commissioners
of Georgia, executed "a deed of articles and mutual cession," April 24, 1802,
of which the following provisions are all that are material to the present inquiry.
The State of Georgia cedes to the United States, "all the right, title, and claim, which the said state has to the jurisdiction & soil of the lands" which now appear on the map as the states of Alabama and Mississippi.
The United States engage to pay Georgia $1,250,000; from the first net proceeds of said lands, "as a consideration for the expenses incurred by the said state, in relation to the said territory."
"The United States shall, at their own expense, extinguish, for the use of Georgia, as early as the same can be peaceably obtained, on reasonable terms, the Indian title to the Country of Tallassee," &c &c., "and the United States shall, in the same manner, also extinguish the Indian title to all the other lands within the State of Georgia."
The United States cede to Georgia "whatever claim, right, or title, they may have to the jurisdiction or soil of any lands," which are within the chartered limits of Georgia, and east of the present line between Alabama and Georgia.
The great outlines of this compact are:
1. The parties agree upon a division of claims, which they had both made to the same lands.
2. The United States give Georgia a sum of money, not as the price of claims to land, but "as a consideration for expenses incurred by Georgia, in relation to said territory."
3. The United States engage to extinguish the Indian title to lands within certain limits, "as early as the same can be peaceably obtained, on reason able terms."
Georgia now complains, that the United States have failed to fulfil this
compact. But in what does the failure consist? The money has been
paid. The Indian title to three-quarters of the land, which belonged to
the Indians in 1802, within the intended limits, has been extinguished by the
United States, in the manner prescribed; and Georgia is now in actual possession.
The remaining quarter has been repeatedly applied for; and the United States
have always stood ready to purchase it of the rightful owners, "on reasonable
terms." At least, this has been repeatedly and officially declared to
be the fact, by public functionaries of the United States. But if Georgia
can convict our national authorities of culpable negligence in this respect,
let her claim a fair indemnity. In order to a conviction, however, something
more than mere assertion will be necessary. The evidence of neglect
must be produced. It seems to be morally certain, whether the United States
shall be able to vindicate themselves or not, that the remaining lands of the
Cherokees cannot be "peaceably obtained" of the rightful owners: and if an indemnity
is really due to Georgia, let her receive it.
The reader will not fail to see, that the Creeks and Cherokees could not be in any manner effected as to their right of soil and jurisdiction, by a compact to which they never consented, and in the formation of which they had no agency. If A covenants with B, for a valuable consideration, that he will purchase the farm of C, as soon as he can obtain it lawfully and at a reasonable price; this is a good contract, and will remain binding on A, till he discharges himself from it. But it would be absurd to say that C is bound by such a contract. He may refuse to sell his farm on any terms, or he may ask an unreasonable price for it. In either case, so long as A stands ready for purchase, at a reasonable price; he cannot be charged with a breach of contract. If he has been culpably negligent, by not taking suitable pains, or making reasonable offers, B can doubtless claim an indemnity. It would be rather a hard measure upon C, however, to turn him out of his house, and drive him from his farm, merely because he refused to sell his property. Such an administration of law would not be much admired, except perhaps in the court of Ahab and Jezebel.
Nor would it alter the case, if A and B at the time of making the contract, expected that C would sell his farm at the first reasonable offer. There might be strong indications that C would become an intemperate man, a spendthrift, a sot, a vagrant, and that his farm would speedily pass into other hands; and yet these indications might prove fallacious. C might become a thrifty husbandman, keep his farm clear of debt, and leave it unencumbered to his heirs. And is he to be blamed because he turned out to be an industrious man; and thus disappointed the unfavorable prognostications of B, who stood looking upon the farm with covetous eyes?
Georgia says, that she expected the United States would have long since extinguished the title to all the Indian lands which she claims. Very well. What if she did? The history of every man, and every community is full of disappointed expectations. In the spring of 1818, the planters of Georgia expected to get thirty cents a pound for cotton, in many subsequent years; and they made their purchases of land and slaves in that expectation; but they are now glad to get ten cents a pound. This disappointment is a hundred times more felt by each man individually, than the failure to get lawful possession of a tract of indifferent land, in the remotest corner of the state.
The terms of the compact between the United States and Georgia save the rights of the Indians, and were manifestly intended to save them. But if the United States had agreed to take forcible possession of the Indian country, and to put Georgia in possession, such an agreement would be absolutely void, for several reasons. First, it would be palpably and monstrously unjust. Secondly, it would be in opposition to previously existing treaties between the United States and the Indians, which treaties were the supreme law of the land. Thirdly, it would be in opposition to treaties between Georgia and the Indians--treaties never abrogated nor annulled; and, therefore, Georgia could not insist upon its execution.
There is not a more established maxim of English law than this, viz: that unlawful contracts are not binding. If, for instance, A covenants with B, in consideration of a thousand dollars, that he will compel C by threats, duress, or false imprisonment, to sign a deed of land; and B should undertake to enforce the covenant in a court of justice, it is probable, that both the parties would find themselves in a penitentiary much sooner than in possession of C's property.
It is clear, then, that the United States could not be bound by the compact of 1802, however that instrument might be understood or construed, to do more than purchase the lands of the Cherokees, within the prescribed limits, whenever the rightful owners are willing to sell, upon reasonable terms.
But this is not all. A fair interpretation of the compact binds Georgia to the same course of proceedings, which had previously been pursued, for the acquisition of Indian lands. The course was perfectly well known to both parties. It was always through the medium of the treaty making power.
The compact says, that the United States shall extinguish the Indian title. The Indians had a title, it would seem and a title of such a kind, as would require the agency of the United States before it could be extinguished. It would not expire of itself, it would not vanish before the march of civilization; but the immense power of the general government must be brought to bear upon it. Even this power might fail; and hence, the provision, that the United States should not be bound to do what was impossible, or unreasonable. At that time, it would doubtless have been thought morally impossible for our general government to break plain, positive treaties; or to take forcible possession of lands in the peaceable occupancy of Indians, even though these lands were not protected by treaty. The title was to be extinguished peaceably, and on reasonable terms. The law of the strongest, was not to be relied on. All the parties were to sustain the character of reasonable beings. There was to be a consent to terms, a union of minds, and not an appeal to the sword. This part of the compact is as truly obligatory as any other part.
It was stipulated by the commissioners, that the compact should be binding, if the assent of the Legislature of Georgia should be given within six months from the date; provided, that Congress should not, within the same period, repeal the act by which the agreement had been made. The Legislature of Georgia assented to the compact and Congress did not repeal the act.
The enacting clause, by which Georgia ratified the compact, is in the following words, which ought to be very diligently considered by the leading men of that state, viz:
"Be it enacted by the Senate and House of Representatives of the State of Georgia, in General Assembly met, and by the authority thereof, That the said deed, or articles of agreement and cession be, and the same hereby is and are fully, substantially, and amply ratified and confirmed in all its parts: and hereby is and are declared to be binding and conclusive on the said state, her government, and citizens, forever."
Now let it be remembered that the State of Georgia, fully aware that the treaty making power was vested exclusively in the general government; knowing in what manner that power had been exercised for thirteen years; that no less than eight treaties had previously been made by the general government with Indian nations living within the chartered limits of Georgia; that most of these treaties contained cessions of land and established boundaries of territory, with solemn guaranties; that there was no way of extinguishing the Indian title, except by treaty;-the Legislature of Georgia, knowing all these things, solemnly ratified the compact in accordance with which the United States only could extinguish the Indian title; and this could be done only in a peaceable manner. The compact containing these provisions was ratified "in all its parts" and declared to be binding on the "state, her government, and citizens, forever."
With that shadow of reason then, can it be pretended, that Georgia has a right to extinguish the Indian title herself, without waiting for the interposition of the general government; or that the Cherokees have no title to be extinguished, being mere tenants at will, or tenants by sufferance? When the politicians of Georgia stretch out their grasping hands to seize the property of the unoffending Cherokees, let this word forever, the closing word of a solemn act of legislation, ring in their ears, till they shrink back from oppression, and betake themselves to that course of equity, which is prescribed in the compact, thus solemnly ratified and sanctioned.
The public measures of Georgia, in relation to the Indians, have all, till quite recently, been conformed to the principles of this compact of 1802. It is not quite five years since the spurious Treaty of the Indian Spring was made;-a treaty, which the highest authorities set aside for manifest fraud. The proclamations and reasoning of the Governor of Georgia, in regard to the effect of this treaty, (on the assumption that it was valid,) are, in the main, correct and proper.
This treaty was made February 12, 1825. On the 22d of March following, Governor Troup issued a proclamation which commences thus: "Whereas by a treaty concluded with the Creeks, &c. their claims to the whole territory within the limits of Georgia were ceded to the United States, &c. by which act, the territory within the limits of Georgia were ceded to the United States, &c. by which act, the territory aforesaid, according to the stipulations of the treaty and of the articles of agreement and cession of 1802, will, on or before the first day of September, 1826 pass into the actual possession of the State of Georgia," &c. In this preamble some of the principal doctrines, for which I have contended in these numbers, are plainly acknowledged, or implied. The lands are here admitted to have been ceded to the United States by a treaty, & to be about to pass into the actual possession of Georgia eighteen months after the date of the proclamation, not because Georgia as a sovereign and independent state, had a paramount title to them, not because it was found written in the laws of nations that these lands belonged to Georgia, but because the stipulations of the treaty and the compact of 1802 so required. This is an honest and accurate account of the matter. The United States purchased lands of the Indians. These lands, when purchased, and after the time for the Creeks to remove from them should have arrived, would "pass into the actual possession of Georgia," for this very good reason, viz. the United States had covenanted, as soon as lands within certain limits could be peaceable obtained, they should be thus obtained, "for the use of Georgia."
In the same proclamation, Gov. Troup warns "all persons, citizens of Georgia, or others, against trespassing, or intruding upon, lands occupied by the Indians within the limits of this State, [that is, the lands described in the treaty] either for the purpose of settlement, or otherwise, as every such act will be in direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment by the authorities of the State and the United States."
The treaty prescribed that the Creeks should remove before September of the next year, till which time they were to retain unmolested possession of their country. But some of the citizens of Georgia might feel inclined to take possession earlier. Such a measure, the Governor warns them against, assuring them, that it would be a direct violation of the treaty, and would bring upon the trespassers and intruders, certain and summary punishment; and this punishment would fall upon citizens of Georgia, as well as others, if they should expose themselves to it. Now, as the Treaty of the Indian Spring is justly considered by Gov. Troup as a sufficient barrier to protect the Creeks in the possession of their country, till the time fixed in the treaty for their removal, why are not the Treaty of Holston with its solemn guaranty, (1791), and the first Treaty of Tellico, with its repeated guaranty, (1798,) and the treaty of General Jackson, with its recognition of previous treaties, (1817,)- why are not all these compacts sufficient protection of the Cherokees "against all persons," to use the language of the proclamation, "citizens of Georgia, or others, trespassing or intruding upon the lands occupied by the Indians."
We safely gather from the passages here quoted, and the one which is to follow, that Gov. Troup found no difficulty in understanding the treaty; that its provisions were, in his opinion, to be rigidly observed; and that ample powers were in the possession of the public authorities of the United States for punishing aggressors.
The proclamation continues thus: "All good citizens, therefore, pursuing the dictates of good faith, will unite in enforcing the obligations of the treaty as the supreme law, aiding and assisting, &c. &c. and all officers, civil and military, are commanded to be vigilant in preventing offenses under it, and in detecting and punishing offenders."
In the principles here assumed and enforced I heartily concur. The Governor who issued this proclamation is now a member of the Senate of the United States, where he will have the best opportunity "to pursue the dictates of good faith," and to assert "the obligations of treaties as the supreme law." Most gladly shall I see him engage in a work, which so well becomes a Senator, of our great republic; and, should he thus engage, he may be encouraged with the thought that his efforts will not be unsuccessful.