and Indians' Advocate
Wednesday, February 10, 1830
Vol. II, no. 43
Page 1, col. 1b -4b and Page 4, col. 1a
From the National Intelligencer
PRESENT CRISIS IN THE CONDITION OF THE AMERICAN INDIANS
There are in our country not a few benevolent individuals, who cheerfully admit that the Indians have a perfect right to the possession of their country: that we are bound by treaties to defend this right; and that the forcible seizure and division of their lands would be an act of enormous injustice; who yet suppose, that the continuance of the Cherokees where they now are, would be extremely inconvenient to Georgia and to the United States. These persons are inclined to think, that the inconvenience will be found so great, as to amount to a sort of moral necessity: and that, therefore, the sooner the Cherokees consent to a removal, the better it will be for them, as well as their white neighbors.
An acquaintance with the real state of facts, would convince these benevolent individuals, that they are quite mistaken, in regard to the best manner of promoting the permanent good of all parties. The inconvenience which appears so formidable, is altogether imaginary. It will utterly vanish, at the very moment when the State of Georgia, and other white neighbors of the Indians, shall be inclined to do what is right. If the disposition to take the property of the weak and defenceless[sic] and convert it to our own use is to be dignified with the name of moral necessity, we should be aware that such a doctrine subverts the very foundation of law and order.
It is urged, that if the Cherokees remain where they are, Georgia is deprived of a valuable portion of land within her chartered limits. But this is an abuse of language. Georgia is deprived of nothing. If the Cherokee are compelled to remove either by physical force or what is called moral necessity, they are deprived of their inheritance; but if they remain, there is not deprivation on either side. An opulent landlorder [sic] might as well complain, that he was deprived of some excellent land, which would be very convenient to him, and which he expected to have acquired long ago for a trade; but to his great surprise, the rightful owners refused to sell. This is a species of privation to which a covetous men have always been exposed in every part of the world. They cannot get all the land that lies contiguous to their possessions; and the larger their domains are the greater inconveniences do they feel; for the more extensive their limits, the greater is the number of obstinate neighbors, with whom they come into contact. What an inconvenient world do we live in! And what a calamity it is, that there should be so many of the poor, the weak, and the defenceless, who are in perpetual danger of being trodden under the feet of their betters!
Thus it is, that the insatiable desires of men create imaginary troubles. The State of Georgia, exclusive of the Cherokee country, has only six or seven souls, one half of whom are blacks, to each square mile; that is, omitting merchants, traders, and mechanicks [sic], less than one white family to two square miles of land. The most remote part of her chartered limits is still in the rightful occupancy of the Cherokees. The land of this portion is far less capable of lucrative cultivation than the State is generally. I speak not without some knowledge on the subject; and I have inquired of others. Let the Representatives in Congress from Georgia, if they are acquainted with the quality of the land within the Cherokee limits, state frankly how large a part is composed of mountains and barren tracts, which a Georgian would pronounce utterly worthless; how large a part would produce but a moderate crops; how small a fraction would be considered land of a very good quality. Let those things be stated and it will be found that the Cherokee country is not by any means so valuable, as has commonly been supposed.
It can make no odds as to title, whether the soil be as fertile as the banks of the Ganges, or as barren as the sand of Arabia, but it should be known that the value of the property here at stake is nothing compare with the feelings of the Cherokees; not to mention the importance of the principles to be decided. Though the Cherokee country is in healthful climate, and is pleasant and comfortable residence for the original inhabitants, the far greater part of it would be left untouched for many years, if exposed to sale in the same manner as the public lands generally of the United States. The interest of Georgia, therefore is inconsiderate; nor would the prosperity of that State be materially affected, if another acre were never to be added to the territory now in her actual possession.
It has been alleged, that great inconveniences will be experienced, by
having an imperium in imperio; a separate, independent community surrounded
by our own citizens. But in what do these frightful inconveniences consist?
A little pacific community of Indians, living among the mountains, attending
to their own concerns, and treating all who pass through their borders
with kindness and hospitality, is surely no very great cause of alarm.
If there is a territory in possession of a powerful and hostile nation, and
in the immediate vicinity of our white settlement, where our rivals and enemies
might shelter themselves, while plotting against our peace, and where fugitives
from justice could find a refuge, there might be some reason for apprehension;
though even these circumstances would never excuse a violation of treaties.
But the Cherokees can never have any interest adverse to our national prosperity.
They have solemnly agreed to live under our protection and to deliver up fugitives
from justice. We have by treaty a free navigation of their waters, and
a free passage through their country.- What more can we reasonably desire?
But if there were an inconvenience to us, as a consequence of there having been aboriginal inhabitants on this continent, how are these inhabitants to blame? If we are incommoded by having a little Indian community in the midst of us, we brought the evil upon ourselves by pushing on settlements into the wilderness in such a manner as to surround our red brethren. They did not compel us nor allure us, nor invite us to such a course of proceeding; and they are not under the slightest obligation to give up their national existence to save us from this supposed inconvenience, though it were great many time greater than it has ever been alleged to be.
The dangers from an imperium in imperio are, in the case before us, altogether chimerical. Among our own citizens we have governments within government of all sizes, from a school district upwards, and all sorts of corporations with limited powers. In Great Britain, there is a vast diversity of customs, rights, franchises, and exemptions peculiar to different towns, boroughs, cities, and counties, and to the larger divisions of the realm. Germany is almost wholly composed of smaller communities each possessing a limited sovereignty; and many of them conducting their municipal affairs according to their own discretion.--But, (which is more immediately to the purpose) there have been separate communities of Indians in most of the older members of the Confederacy, from the first settlement of the country; and no disastrous consequences have followed. At the present day, there are in the State of New York, several small tribes of Indians, living under their own laws, and not partaking in the rights of the citizens of the United States. They have been declared by the highest tribunal of that State, to be "not citizens, but distinct tribes or nations, lying under the protection of the Government." The opinion of Chancellor Kent, which, I never saw, till all the preceding numbers were in the printers hands supports the position, which I endeavoured [sic] to establish in the examination of treaties. Yet the State of New York does not appear to suffer from having permitted these tribes to remain on their own land; to hold it in common; to remain exempt from taxes, militia duty, and every kind of public burden; and to sustain a qualified sovereignty though surrounded by white neighbors.
If the time shall ever arrive, when these sovereignties may become extinct, to the mutual advantage of the Indians and whites, the manner of bringing about such a change will demand the efforts of the most disinterested men in our country, and the counsels of the wisest. In the meantime, let us hear the advice of Chancellor Kent on the subject:-
"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 weaknesses 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.-Johnson's Report col. 20, p. 717
The learned jurist was speaking of the small tribes in the State of New York, whose domains are now restricted by their own consent to tracts of a few miles square, and whose numbers are reduced to a few hundreds. These tribes having resigned many attributes of sovereignty which the Cherokees still retain, and living in the midst of a crowded population may possibly find it for their interest to abdicate the sovereignty which still remains to them. In such an event, the Chancellor lays it down as indispensable that the government of New York should endeavor to effect the change with the full knowledge and assent of the Indians themselves. This is, indeed, one of the first dictates which would be obeyed by an upright and honorable mind, but how much more imperative is it in the case of the Cherokees who number thousands for the hundreds of Oneidas and Senecas; who have sufficient territory in which they can secure themselves under the protecting laws of the United States from molestation on the part of the whites; who have a regular government of their own, suited to their habits, their condition, and their wants; and who have their relations with the United States distinctly marked and defined by various treaties. If however the Cherokees can be persuaded by fair and honest arguments that they will be gainers by giving up their sovereignty either now or fifty years hence, let their consent be obtained. Let them always be made to feel that they are free agents, not in such a sense as the traveller is free when he delivers up his purse, with a pistol at his breast- but as truly as any man, or body of men who make a contract under the protection of a law and on terms of perfect reciprocity. The Cherokees should especially at this juncture be again assured that they stand behind the shield of the law--the supreme law of the land, which, in a government like ours, should afford a deference not less perfect and certainly much more convenient than could be afforded by a cordon of 150,000 bayonets or a wall of adamant from the earth to the skies.
The Chancellor says also that this change should be affected (if at all) "with the most scrupulous regard to the weaknesses and prejudices" of the Indians. He would not justify the use of cold and unfeeling language such as: "Indians must always retire from the march of civilization. It is also vain to attempt to save them." We would much sooner lament the frauds and impositions which have been practiced on them by profligate and interested white men, and the deficiency of benevolent feelings towards them, on the part of many, who would by no means tolerate fraud and oppression. Justice requires that it should be said however, that most of the legislatures of the older states framed laws for the protection of Indians, with a most benevolent regard to their good, and on the genuine principles of Christianity.
The Chancellor says again, that the change should be effected "with the entire approbation of the government of the United States." This change, be it remembered, had reference to the little tribes in the State of New York. Yet the Highest law character in the State, delivering an opinion before the Senate, sitting as the highest Court of law in the State, did not apprehend an impeachment for sacrificing State Rights, when he declared that, if an arrangement should be made on this subject, it should be made "with the entire approbation of the government of the United States." And the Senate consisting of thirty or forty members from all parts of the State, supported the reasoning of the Chancellor, with but a single dissenting vote. How different a spirit is here, from that which prevails in Georgia!
At the close of the paragraph which I have quoted, the Chancellor recommends this course, not only as the most prudent course, and "not only for convenience sake, but for the reputation of our justice." Whoever fears God or regards man; whoever possesses an enlightened conscience and feels his accountability to his Maker, or wishes to deserve the respect and confidence of good men, and the gratitude of after times-such a man, says this learned judge in effect, will take heed that he deals kindly and justly by the Indians.
Hamilton, who is now admitted by all parties to have been so illustrious a statesman and to have felt deeply for the honor of his country, said, respecting treaties, that they are "contracts with foreign nations which have the force of law, but derive it from the obligations of good faith." [Federalist,No. 75]. He reckoned, as among the qualifications of those who were to make treaties "nice and Uniform sensibility to national character." Those qualifications he expected to find in men selected by the legislature of the several States, as representative of the worth, the dignity, and the character of the country, in the highest branch of our national legislature.
It is one of the most encouraging signs of the present times, that public men are made to feel their accountability to the people and their obligation to bring measures of state within the rules of private morality. I speak on a large scale and not with reference to a single county; much less in regard to a single administration. This demand of accountability will ultimately be made by the people of every country, and if rulers whether Kings or Presidents, Parliaments or Congress perpetrate acts in their public character, which would be perfidious in a private man, they will be pronounced guilty, and in cases of great importance, if thus pronounced guilty by the voice of dispassionate and intelligent men, their names will be consigned to infamy.
The great principles of morality are immutable. They bind nations in the intercourse with each other, as well as individuals. On this point I must be indulged with a quotation from Chancellor Trent's Commentaries:-
"We ought not therefore,to separate the science of public law from that of ethics nor encourage the dangerous suggestion that governments are not strictly bound by the obligations of truth, justice, and humanity in relation to other powers as they are in the management of their own local concerns. States or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong; inasmuch as they are collections of individuals each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life." Vol. 1, p. 2.
"The law of nations, so far, as it is founded on principles of natural law, is equally binding in every age, and upon all mankind. But the Christian Nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts; and sciences, and commerce, as well as in policy and government; and above all by the brighter light, the more certain truths, and the more definite sanction, which Christianity has communicated to the ethical jurisprudence of the ancients, have established a law of Nations peculiar to themselves." p.3.
Christianity, then, is the basis of the present law of Nations
[See page 4.]
And the learned Judge has recently declared, on a public and solemn occasion, that Christianity is a part of the common law:-
"One of the beautiful boasts of our municipal jurisprudence is, that Christianity is at par of the common law, from which it seeks the sanction of its rights, and by which it endeavours [sic] to regulate its doctrines. And, notwithstanding the specious objection of one of our distinguished statesmen, the boast is as true as it is beautiful. There has never been a period in which the common law did not recognize Christianity as lying at its foundations."- Judge Story's Inaugural Discourse. p. 20.
If Christianity is the basis of the law of Nations and of the common
law of the United States, it surely is not out of place, though it should be
unnecessary to remind our lawgivers and judges, that one of the great maxims
of Christianity, for the regulation of intercourse among men, is, that we should
do to others whatever we would desire that they, in like circumstances, should
do to us. Let the People of Georgia, and the People of the United States
seriously reflect, whether they should be willing to receive the same treatment
with which the Cherokees are threatened. Would they be content to go into
exile, or to come under the laws of a foreign State, with the studied premonition
that they could be neither witnesses nor parties, in a court of justice?
Let the appeal be made to conscience: and unless the conscience be buried under
impenetrable ignorance, or seared as with a hot iron, the answer cannot be doubtful.