and Indians' Advocate
Wednesday, February 3, 1830
Vol. II, no. 42
Page 1, col. 1b-Page 2, col. 1b
From the National Intelligencer.
In a quotation, which my last number contained, from a decision of the Supreme Court of the United States, it is said, "That the Indian right of possession has never been questioned;" and that "it has never been contended, that their title amounted to nothing." This decision was pronounced in 1823. Since that time, the politicians of Georgia have strenuously contended, that the Indian title amounts to nothing.
In a Report of the Joint Committee of the Legislature of Georgia, which was approved by the Senate of that State, December 27, 1827, are found such passages as the following:
The Committee say, that Europeans "asserted successfully the right of occupying such parts" of America "as each discovered, and thereby they established their supreme command over it."
Again: "It may be contended, with much plausibility, that there is, in these claims, more of force than of justice; but they are claims, which have been recognized and admitted, by the whole civilized world; and it is unquestionably true, that, under such circumstances, force becomes right."
The Committee suppose that "every foot of land in the United States is held" by the same title.
The Committee say, that it is contended, that, by the compact of 1802, "a consideration was contemplated to be paid by the United States to the Indians, for their relinquishment of this title; and therefore it was of such character as was entitled to respect, and as could not be taken from them unless by their consent." The committee add, "But we are of a different opinion."
"Before Georgia became a party to the articles of agreement and cession, [the compact of 1802] she could rightfully have possessed herself of those lands, either by negotiation with the Indians, or by force; and she had determined, in one of the two ways, to do so but by this contract she made it the duty of the United States to sustain the expense of obtaining for her the possession, provided it could be done upon reasonable terms, and by negotiation; but in case it should be necessary to resort to force this contract with the United States makes no provision; the consequence is, that Georgia is left untrammelled, and at full liberty to prosecute her rights in that point of view, according to her own discretion, and as though no such contract had been made."
The Committee give it as their opinion, "That the right of soil and sovereignty was perfect in Great Britain; that the possessions of the Indians was permissive; that they were mere tenants at will; and that such tenancy might have been determined at any moment, either by negotiation or force, at the pleasure of Great Britain."
The words printed in italics are thus distinguished by the Committee.
It might be difficult to tell which is most remarkable, the reasoning or the morality of these extracts.
The Committee argue, that, as there is no provision in the compact of 1802, by virtue of which the United States are bound to use force upon the Indians, it follows that Georgia has a right to apply force, whenever she pleases. This is one specimen of the logic. Again; to most people it would seem to be a weight in the remark, that as the Indians were evidently to receive a consideration for their lands, they must have a title which should command respect. But no; in view of this statement, the committee come to a different conclusion. Here is another specimen.
The morality of the doctrine inculcated by the Georgia legislature may be sufficiently understood by the broad positions, that discovery gave absolute title to Europeans, that the title of the original inhabitants was permissive; that it was a mere tenancy at will (which is not title at all;) that the discoverer might determine the tenancy at any moment, by negotiation or force; and that, as all European governments are alleged to be agreed in these principles, "force becomes right."
The inhabitants of North America might therefore have been rightfully driven into the ocean, "at any moment," When the discoverers should have been willing and able thus to drive them. It is to be inferred, that Cortes and Pizarro were only executing the lawful commands of the king of Spain, when they were taking possession of Mexico and Peru, which, according to this doctrine, rightfully belonged to him; though in doing so they were under the unpleasant necessity of murdering the original inhabitants.
The committee are entirely mistaken in point of fact, when they say, that "every foot of land in the U. States is held" by such a title as has been described: that is, a title in the European sovereign, which on the moment of discovery, supplanted and subverted all the rights of the natives to the lands on which they were born, and of which they were in full possession. It may be truly said, that there is not, within the limits of the United States, as fixed by the peace of 1783, a single foot of land held, as against the original inhabitants, by the title of discovery alone. Incomparably the largest portion of the territory, within the above mentioned limits, has been purchased of the Indians. Some small portions have been conquered; the original owners having been nearly exterminated in war, or driven from their lands by a superior force, or compelled to cede them, as the price of a pacification. But in all these cases, the wars had some origin, than an attempt to enforce the title of discovery. The politicians of Georgia are requested to produce a single instance, after the settlement of the Anglo-American colonies commenced, of any English sovereign, or any colonial governor, or any colonial legislature, or any State legislature anterior to the treaty of the Indian Spring in 1835, having assumed the right of taking forcible possession of Indian country, at any moment, by virtue of the title of discovery, and without any regard to what the Supreme Court has called "the just and legal claim" of the natives to retain possession of their country. The exclusive right of extinguishing the Indian title, or what has usually been called the right of preemption, is totally a different thing from this all absorbing and overwhelming right of discovery, on which Georgia now insists. If a single instance of such an assumption can be produced, let it be brought forward. Let us contemplate the circumstances in which it originated, and examine its claims to respect. Thousands of instances can be adduced, on the other hand, of acknowledgements made by emigrants from Europe and by rulers of every grade from the highest to the lowest;-acknowledgements, which admitted the perfect right of the Indians to the peaceable possession of their country, so long as they chose to retain it.
But if all the governments of Europe had, during the three last centuries, held the doctrine now so warmly espoused by Georgia, how utterly vain would be every attempt to defend it, or to make it appear otherwise than tyrannical, cruel, and abominable. Not all the monarchs of Europe, nor all the writers on the laws of nations, nor all the power and all sophistry in the world, could alter its character, or convince an honest, candid, and intelligent man, that it is entitled to the least respect. What is the doctrine, so necessary to the present claims of Georgia? It is neither more no less than the assumption, that the circumstance of an English vessel having sailed along the American coast from cape Hatteras to the Bay of Fundy, as the case might be, gave the English king an absolute and perfect title,not only to the coast but to all the interior; and that he might therefore empower any of his subjects to take forcible possession of the country, to the immediate exclusion and destruction of the original inhabitants.
In the history of the slave trade, we have a perfect exhibition of the total inefficiency of human law to sanction what is flagitiously immoral; especially after the eyes of mankind are fixed upon it. For more than two hundred years, the principal powers of Europe legalized the slave trade. The judicial tribunals of all countries sustained it by their decisions. It was universally established and assented to. But was it right? The voice of the world has pronounced its irrevocable sentence. It is now piracy, and to have been recently connected with it is indelible infamy. But is it more clearly wrong to take Africans from their native land, than it is to make slaves of the Cherokees upon their native land? or on penalty of their being enslaved, driving them into exile?
It may be supposed, that this is too strong a representation of the case; that it would be not very serious calamity to the Cherokees, if they were to come under the laws of Georgia. One would think, however, that the spirit of the Report, from which quotations have been made, must be an indication of what is to be expected from Georgia, in the way of systematic legislation on this subject.
One law has already been enacted, with the direct view of extending the jurisdiction of Georgia over the Cherokees. It was approved December 20, 1828, and deserves a particular consideration.
The first five sections divide that part of the Cherokee country, which falls within the chartered limits of Georgia, into five portions, attaching each one of these portions to a contiguous county of Georgia. The sixth section extends the laws of Georgia over white residents within the limits above mentioned; and the seventh declares, that, after June 1, 1830, all Indians "residing in said territory, and within any one of the counties as aforesaid, shall be liable and subject to such laws and regulations, as the legislature may hereafter prescribe."
Sec. 8. "That all laws, usages, and customs, made, established, and in force, in the said territory, by the said Cherokee Indians, be, and the same are hereby, on and after the first day of June, 1830, declared null and void.
9. "That no Indian, or descendant of Indian, residing within the Creek or Cherokee nations of Indians; shall be deemed a competent witness, or a party to any suit, in any court created by the constitution or laws of this state to which a white man may be a party."
Under the administration of this law, a white man might rob or murder a Cherokee, in the presence of many Indians, and descendants of Indians; and yet the offence could not be proved. That crimes of this malignant character would be committed is by no means improbable; but assaults, abuses, and vexations, of a far inferior stamp, would render the servitude of the Cherokees intolerable. The plan of Georgia is; as explained by the Senate, to seize five sixths of the territory in question, and distribute it among her citizens. If a Cherokee head of a family chooses to remain, he may possibly have his house and a little farm assigned to him. This is a most favorable supposition. But his rights are not acknowledged. He does not keep the land because it his own, but receives it as a boon from Georgia. He will be surrounded by five white neighbors. These settlers will not be from the more sober, temperate, and orderly citizens of Georgia, but from the idle, the dissolute, the quarrelsome. Many of them will hate Indians, and take every opportunity of insulting and abusing them. If the cattle of a Cherokee are driven away in his presence; if his fences are thrown down and his crops destroyed; if his children are beaten, and his domestic sanctuary invaded;-whatever outrage and whatever injury he may experience he cannot even seek a legal remedy. He can neither be a party, nor a witness. He has no friend, who can be heard in his behalf. Not an individual can be found, who has any interest in seeing justice done him, & who at the same time has any power to serve him. Even the slaves of his new neighbors are defended by the self-interest of their masters. But he has not even this consolation. He is exposed to the greatest evils of slavery, without any of its alleviations. Everybody is let loose upon him; and it is neither the interest, nor the inclination, nor the official duty, of the white settlers to defend him. Everybody may destroy his property; but nobody is bound to keep him from starving, when his property is gone. How long could a Cherokee live under such treatment as this.
Accustomed from his birth to feelings of entire equality and independence, he would find himself, at a single stroke, smitten to the earth, and there held till manacles of a most degrading vassalage were fastened upon him. As soon as the net of Georgia legislation is sprung over him, he is equally and instantly exposed to a public persecution and private indignity. He feels himself to be a vagabond, even while standing upon the very acres, which his own hands have laboriously subdued and tilled,- an outlaw, in the house, which he has erected and made comfortably for himself, and which, to a white man, would be a castle,--a trespasser, for innocently treading the soil of his native forest,--an intruder, for drinking the pure water of his native springs, or breathing the air of his native mountains,--a stranger among his neighbors,-an alien, on the spot where he was born.
Who are the human beings, thus suddenly brought into so deplorable and abject a condition? Are they Caffrees and Hottentots, skulking through the woods, in a state of nudity, or covered only by a few shreds of tattered sheepskin? Are they run away slaves, pursued by the vengeance of exasperated masters? Are they Ishmaelites, waylaying the path of inoffensive travellers, and their hands reeking with the blood of recent murders? Are they bands of ruffians, collected from the worst among the discharged tenants of our penitentiaries? Have they invaded our settlements, driven off the inhabitants, and established themselves in an unrighteous possession, of which they are now about to be divested? What is their character, what is their crime, that their lands are to be divided, and their persons and families to be put beyond the protection of the law.
If they are Caffrees, or Hottentots, they should be dealt with kindly; and should be compassionated in their ignorance and degradation. If some of them were Ishmaelites and renegadoes [sic], they should be tried in a regular manner. The innocent should not be punished with the guilty. The guilty should not be punished without a trial; and neither the innocent nor the guilty, should be delivered over to private malice.
How would an intelligent foreigner, a German, a Frenchman, or an Englishman, be astonished to learn, that the Cherokees are neither savages, nor criminals; that they have never encroached upon the lands of others;- that their only offence consists in the possession of lands, which their neighbors covet;-that they are peaceable agriculturalists, better clothed, fed, and housed, than many of the peasantry. In most civilized countries;-that they have sustained diplomatic relations with the whites, at different periods, from the first settlement of the contiguous territory by Europeans,- that these relations have ripened into a firm and lasting peace, which has not been broken by a single act of hostility for forty years;-that the peace thus cemented is the subject of numerous treaties, the bases of which are, a sovereignty of the Cherokees, limited, in certain respects, by express stipulations, and guaranty, on the part of the United States of protection and inviolate territorial limits; that these treaties have been the foundation of numerous legal enactments for the protection of the weaker party, whose title has been pronounced, by the highest tribunal in our country, to be worthy of the respect of all courts, till it be legitimately extinguished;- that the Cherokees are not charged with having broken their engagements, or done anything to forfeit the guaranty, which they had received as the indispensable condition of their grants to the United States:- that they have always been called brothers and children by the President of the United States, and by all other public functionaries, speaking in the name of the country:-that they have been encouraged and aided, in rising to a state of civilization, by our national government, benevolent associations of individuals;-that one great motive, presented to their minds by the government, has uniformly been the hope and expectation of a permanent residence, as farmers and mechanics, upon the lands of their ancestors, and the enjoyment of wise laws, administered by themselves, upon truly republican principles;- that, relying upon these guaranties, and sustained by such a hope, and aided in the cultivation of their minds and hearts by benevolent individuals stationed among them at their own request, and partly at the charge of the general government, they have greatly risen in their character, condition and prospects;-that they have a regularly organized government of their own, consisting of legislative, judicial, and executive departments, formed by the advice of the third President of the United States, and now in easy and natural operation;-that a majority of the people can read their own language, which was never reduced to writing till less than s seven years ago, and never printed, till within less than two years;- that a considerable number of the young, and some of the older, can read and write the English language;- that ten or twelve schools are now attended by Cherokee children;-that, for years past, unassisted native Cherokees have been able to transact public business, by written communications, which to say the least, need not fear a comparison in point of style, sense, and argument, with many communications made to them, by some of the highest functionaries of our national government;-that these Cherokees, in their treatment of whites, as in their intercourse with each other, are mild in their manners, and hospitable in their feelings and conduct;-and to crown the whole, that they are bound to us by the ties of Christianity which they profess, and which many of them exemplify as members of regular Christian churches.
These are the men, whose country is to be wrested from them, and who are to be brought under the laws of Georgia without their consent.-These civilized and educated men;-these orderly members of a society, raised in part by the fostering care of our national government, from rude materials, but now exhibiting a good degree of symmetry and beauty;-these laborious farmers, and practical republicans;- these dependent allies, who committed their all to our good faith, on the "guaranty" of Gen. Washington, the "assurance" of Mr. Jefferson, and the "re-assurance" of Gen. Jackson and Mr. Calhoun, sanctioned as these several acts were, by the United States;-these "citizens of the Cherokee Nation" as we called them in the Treaty of Holston;-these fellow Christians, regular members of Moravian, Presbyterian, Baptist, and Methodist churches, fellow citizens with the saints and of the household of God are to be suddenly brought under the laws of Georgia, according to which they can be neither witnesses, nor parties in a court of justice. Under the laws, did I say? It is a monstrous perversion to call such a state of things living under law. They are to be made outlaws on the land of their fathers; and, in condition, to be allowed the privilege of choosing between exile and chains.
But who are the men that impose so fearful an alternative? and what is the government, that hesitates to redeem its pledge? Is it some rotten Asiatic despotism, sinking under the crimes and corruptions of bygone centuries, feeling no responsibility, and regarding no law of morality or religion? Not so. It is a government, which sprung into existence with the declaration "that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." From a government thus established, this flagrant wrong is apprehended; and from a people, who boast that they are the freest and most enlightened community on earth; who insist on the right of every community to govern itself and who abjure the very idea of foreign dictation.