and Indians' Advocate
Wednesday, January 27, 1830
Vol. II, no. 41
Page 2, col. 1a-Page 3, col. 1b
To the Senate and House of Representatives of the United States in Congress
The Memorial unanimously adopted by a meeting of the citizens of the City of New York, convened by public notice, respectfully represent:-
That the relations between the government of the United States and the Indians living on their own lands within our national limits, are now in such a state, as not only to make it proper that the people generally should address themselves to the Federal Legislature on the subject, but, in the judgment of your memorialists, it has become the imperious duty of all good citizens, who have a just view of the matter, to cause their voice to be heard in our national councils.
Unless your memorialists totally misapprehend the meaning of several public documents, which have proceeded from the government within a few months past, it countenances the doctrine, that Indian nations, though still remaining as separate communities, and residing on lands received from their ancestors, and never alienated, are destitute of any valid claim to the territory which they inhabit, and lie entirely at the mercy of the States, within whose conventional limits they happen to fall. To your memorialists this doctrine appears on a high degree alarming, as unless they are entirely mistaken, it is subversive of the plainest principles of justice, and if followed out, in all its legitimate consequences, would make force the first and only arbiter between separate communities; and of course would bring every weak community under the domination of its powerful neighbour [sic].
The four southwestern tribes of Indians, viz: the Cherokees, Chickasaws, Choctaws, and Creeks, are estimated by the Secretary of War, in his late report, to contain 75,000 souls, all of them residing within the chartered limits of particular members of our Union. According to the doctrine promulgated by the President of the United States, the legislature of these members of our Union have the right of bringing the above mentioned tribes under the jurisdiction of state laws, and of confiscating their lands and dividing them among the whites; thus, at a single stroke, reducing independent tribes to a state of vassalage, and subjecting them without their consent, and against their solemn protestation and remonstrance, to a system of legislation under which it will be impossible for them to live, and which, if we may judge from all the specimens that have yet been given, will be formed with a particular view to driving them into exile, or insuring their speedy extinction.
Such an usurpation of power, exerted by the strong over the weak, and such a division of property rapaciously snatched from the real owners, would appear to your memorialists to be acts of enormous injustice, such acts as have very rarely been perpetrated by nations calling themselves civilized, and professing to pay a decent respect to their own reputation. This is the opinion which we are compelled to form, on looking at the principles of natural justice, independent of all positive agreements or compacts.
It surely cannot be necessary however, to recall to the recollection
of Congress the various treaties, which have been made with these nations, from
the first establishments of colonies in the southern states to the year 1827,
when the last treaty was made with the Creeks. In all these compacts,
some of which are found in almost every volume of our national statutes, the
Indians were admitted to have a national character, and a property in all lands
within their territorial limits. As to a national character, it is implied
in the very transaction of being a party to a negotiation, and can never afterwards
be denied by the other party. If the government of the United States
should now proceed upon the ground that Indians have no title to the land on
which they were born, which has always been in their possession, and which has
been expressly admitted to belong to them, the people of the United States bring
upon themselves the double reproach of overstepping the bounds of justice, in
as clear a case as can possibly be conceived, and of disregarding the most solemn
treaty stipulations, frequently repeated, and many times acknowledged, by the
highest departments of our government. Such a reproach, from which it
will be impossible, as your memorialists apprehend, to clear the government
and people of the United States, cannot be regarded otherwise than as a great
public calamity. On this account, your memorialists feel bound to call
the attention of Congress to a more detailed statement of the two claims, by
which the southwestern tribes now hold the lands in their possession, viz. immemorial
occupancy, and the acknowledgment and guaranty of the United States.
That the aboriginal inhabitants of this continent were, at the time when it was discovered by Europeans, in actual possession of territory, in almost every part of North America, cannot be questioned. That no part was left vacant, or unoccupied by human beings, your memorialists would not undertake to assert. Nor is it necessary to fix precisely what might be called an actual possession of territory by Indians. It will be sufficient for the decision of all practical questions on this subject, if we say, that Indian nations were respectively in actual possession of all lands on which they had their usual residence, and of all lands from which, by their frequent presence or by occasional force, they excluded other Indian nations. That a similar possession has always been considered good and valid, in the old world, is too clear to admit of a question. When ancient writers speak of the acknowledged limits of Gaul, Belgium, or Scythia, they are not to be understood as saying, that every square mile within these limits contained the domicil of original inhabitants. The Scythians were in actual possession of all the territory from which, by their own residence, or the power of their arms, they constantly excluded other nations. There may be, and doubtless are, many thousands of square miles within the present limits of Russia, which do not contain the domicil of a single human being; but who can say, that those regions are not in the possession of that power? In all similar cases, the manner in which territory shall be occupied, or left unoccupied, is a question to be settled by the possessor, and not by strangers.
In the beginning the Creator of the world gave to man dominion over the earth. As the human race became numerous, particular communities of men took possession of particular portions of territory, to the exclusion of other communities. This occupancy was the origin of title to land, as possessed and enjoyed by communities, and as possessed in severalty by individuals of the same community. As occupancy is the first, immemorial occupancy is the best of titles, and is declared to be so, in our elementary law books. The assignee of a title to land transmitted by immemorial occupancy cannot have a better title than his grantor; and, as there may be a flaw in the grant, it is clearly possible he may have a worse one.
On this ground of immemorial occupancy, the Cherokees, Creeks, Chickasaws, and Choctaws now stand. Of all parts of their present territory they have been, and are, in actual possession; and from all parts they have excluded, and now exclude, all persons, of whatever colour [sic] or origin, except the members of their own communities, and such other individuals, as they have permitted to reside within their respective limits. Over the whole territory, of which they are thus in possession, they have exercised, and now exercise, the right of sovereignty or government; and have never been, for a moment, under any government but their own. The accuracy of this statement cannot be denied; nor can it be pretended, that these tribes have, in any manner whatever, either alienated their land, or surrendered their right of self-government.
To assert that the charters of European monarchs, or the compacts of neighbouring [sic] states with each other, can, by imaginary limits, or by lines of latitude and longitude, divest the original inhabitants of their own lands, without their own consent, would be childish; & we believe that no such doctrine has been asserted by any respectable monarch, or governor, or defended by any respectable writer, on this side of the dark ages.
Should it be said, that the admission, that the Indians have any right to the lands which they occupy, might consign immense regions to perpetual barbarism, and leave them comparatively destitute of inhabitants, there are two answers at hand.
The first is Let justice be done. We need not fear the consequences of doing right; while the consequences of deliberately doing wrong will inevitably be disastrous. If we are to be justified in taking lands from the Indians on the ground that we can make a better use of them than will probably be made by the present owners, why may not the more populous nations of Europe demand at least a million of square miles of territory, within what we claim to be our national limits, for the purpose of relieving themselves of some millions of their superabundant population?
The second answer is, that there ever has been, and never will be, any practical difficulty, unless as a consequence of unjust claims on the part of Europeans, and their descendants. The Indians have always been willing to sell a reasonable portion of their lands for a reasonable compensation; and it is impossible to doubt, that if the whites should invariable hereafter act towards them upon the principle of doing to them, as we would wish that they, in a reverse of circumstances, should do to us, every fair and honorable arrangement can be made, as the actual necessities of either party become manifest.
Your memorialists therefore conceived, that the Indians have a perfect claim to their lands, on the broad principles of natural justice.
Nor is their claim doubtful, on the score of acknowledged right, or conventional stipulation.
At the first settlement of the Anglo American Colonies, the natives were universally admitted by the emigrants to have a title to the countries which they inhabited, or frequented. Nay more, the emigrants not only received grants from the natives, but pleaded importunately for such grants as a favour [sic], and presented many honest & imposing arguments, on the ground of mutual benefit; and especially of benefits to be conferred on Indians themselves, by means of commerce, agriculture, civilization and Christianity. The whole range of the Atlantic coast from the gulf of the St. Lawrence to the Gulf of Mexico, was settled on these terms. Your memorialists are not aware of there having been the slightest difference in the doctrines held respecting the original right of the Indians, by the pilgrims of Massachusetts, the Dutch burghers of New York, the Swedes of the Delaware, the great founder of Pennsylvania, the Catholics of Maryland, the Churchmen of Jamestown, and the charitable corporation of which Oglethorpe was the agent at Savannah. It is believed that all held the same language. All admitted the Indians to be the rightful occupants of the soil, and that they had, (to use the words of Chief Justice Marshall,) "a legal, as well as just claim to retain possession of it, and to use it according to their own discretion." All treated with the chiefs, as having a right to speak for the several communities of natives; and therefore acknowledged the national character of these communities. All gave a consideration for the lands which they received as grantees, which could be nothing less, in the circumstances of the case, than a recognition of title in the original possessors. All agreed upon lines of demarkation; and therefore admitted that the Indians had a right to lands on the other side of those lines. All the colonists solemnly engaged, that they would not encroach upon Indian limits, and that, in future purchases of land, the new settlers would submit their proposals to the unbiased decision of the Indian councils; and would never take possession of lands belonging to Indians except with the consent of the rightful owners; on these terms were the first settlements made without a single exception. On no other terms could a settlement have been made by the small bands of feeble colonists; and for more than a hundred years the new settlements would have been exposed to utter ruin, if the Indians had been frankly told, that they had no right to the lands in their possession, and that the whites might lawfully seize all these lands, as soon as they should be strong enough to do it.
The result of wars between the whites and Indians may fairly be laid out of the case; for all these wars had some other origin than the claim to assert the right of discovery at the point of the sword.
With several nations of Indians, peace was preserved without interruption for more than a hundred years before the revolution, and has been continued, in like manner, all this lapse of years, the Indians were treated as our faithful allies, and tried friends; and were often expressly, and always implicitly, acknowledged to have a perfect right to the land within their territorial limits, both in regard to soil and sovereignty.
At the commencement of the revolutionary struggle, the Congress of the confederate states appeared before the Indian nations earnestly beseeching them to remain neuter during the war, and solemnly pledging the public faith, in that hour of distress, that if the Indians would only assert their national rights of neutrality, the United States would respect those rights, and would guaranty to the Indians their soil & sovereignty forever. In the darkest moments of the doubtful controversy, such a compact was formed, and there is no pretence that it has ever been violated by the weaker party.
Your memorialists now beg leave to call the attention of Congress to the relations, which have always subsisted between Georgia and the Creeks and the Cherokee Nations of Indians. At the first settlement of Savannah by a Charitable corporation, which afterwards became a colony, a small portion of land was solicited from the natives as a favor, and for reasons grounded upon benefits to be conferred on the natives themselves, A grant was made of such lands, as the original inhabitants had no occasion, to use, with the express reservation that not a single new town should be settled by whites, unless with the consent of the Indians. When this grant was made, the chiefs of the Creek Nation, out of abundant caution, solemnly protested, that they were the rightful owners of the Atlantic coast, from the Savannah to the St. Johns, with the neighbouring [sic] islands, and the interior to the mountains; and had been, in actual possession, as they could show by the heaps of bones of invaders slain in battle. Treaties were repeatedly made between the colony of Georgia and Indian nations residing within the chartered limits of that colony; and always upon the ground of the distinct national character of the Indians, and of their rights of soil and sovereignty within their national limits.
So late as the years 1785 and 1786, Georgia, then an independent state, made treaties upon the same basis; her chief magistrate, and most eminent men, being the negotiators. These treaties thus made by Georgia as an independent state, are not alleged to have been violated by the Cherokees, and are, to this moment, as your memorialists conceive, binding upon Georgian honour [sic], law, and conscience, except so far as they have been superseded by subsequent treaties made between the Cherokees and the government of the United States.
Nothing more need be said of the Creeks, as they have recently ceded to the United States for the use of Georgia, such part of their country, as falls within the chartered limits of that state.
By the federal constitution the treaty making power was expressly given to the general government, and the several states were expressly inhibited from exercising it. Soon after the federal government went into operation, our public relations with the Indians underwent a thorough examination and revival. Your memorialists have not learned that a doubt arose in the mind of a single individual, whether these relations came within the scope of the power given to the general government. At any rate, if a question arose, it was settled by the President and Senators of the United States, whose decision, to this case, must be final and conclusive, unless we resort to the absurd supposition, that there is some other body, beside the President and Senate, which has an appellate jurisdiction over treaties, which other body must therefore be the real depository of the treaty making power.
The first treaty made with Indians by the President and Senate of the United States, was negotiated with the Creeks, in the city of New York, under the eye of General Washington and his very able cabinet. The great principles of our relations with the Indians, as they had previously existed, were now fully acknowledged and settled. The national character of the Indian communities was admitted. The great attributes of national sovereignty were exercised by the Indian chiefs, in the name and behalf of their people. Reciprocal stipulations were made. The Indians consented to the relation of dependent allies; and the United States guarantied to them an inviolable territory, which territory was stipulated to be not under the jurisdiction of the United States, nor under the jurisdiction of any particular state. The whole negotiation proceeded upon the basis, that the Indians had a government always in existence; and, as their territory was admitted to be not under the jurisdiction of the United States, it was agreed that they should deliver up criminals "who should take refuge in their nation."
In all subsequent treaties with the Indians, the same principles were followed. No fewer than sixteen compacts, including one under the old confederation, have been made between the United States and the Cherokee Nation. By the Treaty of Holston in 1791, ratified by General Washington, the Cherokees received a solemn guaranty of their territory, and a new description of national limits. By the first Treaty of Tellico, in 1798, ratified by Mr. Adams, the guaranty was repeated, and expressly extended without limitation of time. By the third Treaty of Tellico, in 1805, ratified by Mr. Jefferson, the former treaties were expressly recognized and continued in force. By the second of Washington, in 1810, ratified by Mr. Madison, it appears to have been admitted by all parties, that a state cannot lawfully get possession of Indian territory, lying within its chartered limits, except by means of the treaty making power of the United States. By the treaty of the Cherokee Agency, negotiated by General Jackson, in 1817, and ratified by Mr. Monroe, and by the fourth treaty of Washington, negotiated by Mr. Calhoun, in 1819, also ratified by Mr. Monroe, permanent arrangements were made for the perpetual residence of the greater part of the Cherokee Nation on their present territory; and into the last of these treaties the intercourse law of the United States was ingrafted; thus affording a pledge that the power of the national government should always be exerted to preserve the territory of the Cherokees inviolate. In all these treaties, the whole fabric rests upon the assumption, that the transactions took place between separate communities. It is implied, in a vast variety of forms, that the Cherokee Nation had a government of its own; that this government exercised a rightful authority within certain territorial limits; and that the soil and sovereignty within these limits belonged to the Cherokees, and could not be taken from them without their consent. These treaties were fortified by laws of Congress, made in pursuance of the above mentioned stipulations; and have been regarded as sacred by all branches of the general and state governments, till within a very recent period.
Your memorialists cannot avoid the conclusion, that the bringing of state laws to bear upon the Cherokees without their consent; or the divisions of their lands among the citizens of any state; or the compelling of the Cherokees to remove, by undue solicitations, threats, or force, would be a violation of as plain stipulations as the English language contains, that it bring would [sic] great and lasting disgrace upon our country; and would expose us, as a people, to the judgment of Heaven.
We would, therefore, respectfully, but earnestly, implore the two Houses
of Congress to interpose, in such manner as may be within the scope of their
legitimate powers, and save the nation by prompt and decisive measures, from
the calamity that hangs over it. From the origin of our national existence,
as your memorialists believe, the government of the United States have never
been charged with disregarding the obligations of good faith. But, unless
the treaties with the Cherokees are observed according to the natural construction
of language, such a charge will be inevitable, and will be sustained by the
decision of an impartial work. From so indelible a stigma may our national
character be preserved.
By the solemn nature of every treaty negotiated by our national authority:- by the tender recollections of our ancestors, who sought a resting place in this continent from the oppression of unjust and arbitrary governments;- by the unsullied glory of Washington, the father of the country, who, with his fellow patriots, in the infancy of our national government, gave the most deliberate assurances to the red men of the forest, that the general government should extend to them a truly paternal care, and that the engagements of the general government with the Indians should be honorably fulfilled, according to the understanding of the parties; by a regard to the reputation of our public agents, who, during a period of forty years, have ratified documents of precisely the same character, purporting to be national treaties, but now threatened to be canceled; by that sympathy with the weak and defenceless [sic], which spontaneously arises in every generous and honorable mind; by that abhorrence which every upright legislator will feel at the suggestion of measures that rest upon brute force, and disregard the claims of justice; by the dread of incurring reproach from the wise and good, in remote countries and distant ages; and above all, by the apprehension of the Divine displeasure, which will not fail to punish a nation that, unmindful of its engagements, and swayed by motives of temporary interest and narrow policy, disregard the cries of the oppressed, and the sufferings of the helpless-by all these considerations, your memorialists entreat your honorable body to interpose and save the Cherokees from such injustice and oppression, as can hardly fail of accomplishing their ruin, and of bringing opprobrium and perpetual shame upon our country.-
And your memorialists, as in duty bound, will ever pray.
Signed by order, and on behalf, of the meeting.
JOHN TRUMBULL, Ch'mn
Peter Sharpe }
John Torrey } Secretaries
New York, 28th Dec. 1820.
The following resolution was passed at the same meeting:-
"Resolved, That it be recommended to our fellow citizens, it [sic] all parts of the country, to petition Congress on behalf of the Cherokees, and other southwestern tribes of Indians, that they may be sustained in the undisturbed enjoyment of their national and social rights, and that the honor and good faith of this nation may be preserved."