From the Poulson's Daily Advertiser
TO THE PRESIDENT OF THE UNITED STATES.
Sir- I address you as a Citizen of the Republic. The subject to which I beg leave to all your attention is one of vital importance. It effects your own and our common country's honor, and the rights and happiness, perhaps the lives of thousands. I exclude politics as unworthy to be associated with it. What I wish to present to you is too sacred to be incorporated, under any form with this heartless science. Will you do me the favor to hear me? Believing you will I proceed.
You have already anticipated that I am about to bring before you the Indian subject. I shall confine my remarks to the Cherokees. If this question were involved, did it require laborious investigation or lengthened details, I might not engage in its illustration. But it does not. It is plain and easy of comprehension. It requires in its discussion no great legal knowledge. Common sense-the practice of the past, a simple reading of the laws, and a conformity to their provision, are all that is required. But to the subject.
I learn from what is published that you have decided to abandon those Indians, and leave them in the hands of Georgia and the other States within whose jurisdiction they happen to be; and to surrender them to be governed by their laws! Is this so? I assume that it is.
I have been nurtured in the faith that teaches me that when 'the people of the United States in Congress assembled' shall pass an act and the President of the United States approve it, then the obligation is binding on the President approving, and on his successors in office, whilst such act remain unrepealed to enforce it.- This position will not be disputed.- Then what is the law, the provision of which give to the Cherokees all they so imploring ask of your hands, which is peace and a quiet undisturbed possession of the country which, by treaty and all other
binding ties, is theirs, until they shall choose, freely to relinquish it. But what are the provision of the law to which I refer?
The fifth section of the Act approved 30th March, 1802, is in the words following:-
And be it further enacted, 'That if any such Citizen [and such citizen is defined in the second section of said act, to mean -'any citizen of, or other person resident in the United States, or either of the Territorial Districts of the United States:'] or other person, shall make a settlement on any lands, belonging, or secured, or granted
by treaty with the United States, to any Indian Tribe; or shall survey, or attempt to survey such lands, or designate any of the boundaries, by marking trees, or otherwise such offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not exceeding twelve months. And it shall moreover be lawful for the President of the United States to take such measures, and to employ such military force as he may judge necessary to remove from lands belonging, or secured by Treaty as aforesaid, to any Indian Tribe, any such citizens, or other person, who has made, or shall HEREAFTER make, or attempt to make a settlement thereon.'
This Sir, is the law. The obligation to enforce the provision of which are as binding under your administration, as they were under that which, approved the act and those who have followed, and enforced it, down to your time. It is a living law- and is embraced in the list of those, which, at your installation you swore to execute.
An analysis of this section may be superfluous-but it may not be without its use.
object of the act is (and such has been the interpretation of it by every administration, since its passage, until yours,) to keep any person or persons and all descriptions of persons from trespassing upon any lands belonging or secured by treaty to any Indian Tribe: and the military force of the United States is placed at your disposal, to enforce that object, in your discretion. Such military force as you may judge necessary to remove intruders from Indian lands, it is made lawful for to employ.
But do the Cherokee Indians claim by virtue of any treaty any lands? And if they do, has 'any such citizen or other person made a settlement on any such land belonging or secured, or granted, by such treaty,' to them? I answer, and everybody knows it to be true and therefore quotations from the treaty would be superfluous that the Cherokees do possess lands which are 'secured' and 'granted' to them by treaties with the United States; and everybody knows also, that 'settlements' are made upon those lands by citizens of the United States; that those very lands have been forcibly entered upon, that 'surveys' have not only been 'attempted,' but are making of those very lands 'boundaries' are established, and all in violation of this law; against the peace and well being of the Indians, for whose protection this law was made, and contrary to the practice of past administrations, acting under the authority of this very law,--in a word, in violation of the honor of the nation, and great principles of justice and humanity, which it should be the glory of every people to maintain and cherish.
Let it be distinctly understood that the Cherokees seek only to be protected under the laws of Congress, and the terms of their contracts with the United States, according to their plainest interpretation. They ask nothing more than legal justice, and refer to our own statutes, to our own contracts, for an explanation as to what that justice is.
If then the law is a living law--if its provisions are binding,-if the Indians have lands which are secured to them 'by treaty with the United States,' and if in defiance of the law, those lands are trespassed upon, why, let me ask you, do you forbear to enforce the law, and relieve those weak, suffering, and imploring people? Why is it that the oath you have taken to execute the laws, does not operate to compel your attention to this? Do you answer-the state of Georgia has passed laws authorizing those intrusions and those surveys? I ask in return whether your oath binds you to respect and conform to the laws of the State of Georgia, or those of the United States? Or, if, as you seem to have interpreted it, the laws of Georgia are paramount and render inoperative those passed by the Congress of the United States, touching Indian rights, why may not a law of South Carolina, for example, or any other state render inoperative a law of Congress regulating the tariff, or any other measure? Or why should not any state nullify any act of Congress that might be thought to deprive its citizens of any advantage, which, but for the law of Congress its citizens would enjoy? There is no rule that can apply to the laws made for the protection of the Indians that would justify you in refusing to execute them, that would not apply with equal force to any other law made for any other object.
Indeed, Sir, your obligation to enforce this law is clear! You duty is sacred! It is made binding by the obligations of your oath! A state has no more right to authorize a settlement upon, or a survey of those Indian lands, than you or I have; and simply because no state has a right to pass and execute a law that shall render null and void an act of Congress. But suppose a state has this right under what law--or whence does a President of the United States derive his authority to decide the question. But I have spoken of a precedent: Sir, those who preceded you in the occupancy of the seat you occupy, thought it obligatory on them to enforce the law in regard to this matter. They did enforce it. When the provision of the act I have quoted were violated, when the country of the Cherokees was trespassed upon, and no longer ago than 1824-5 the federal power was applied to maintain the sovereignty of the law. The President ordered a detachment of troops to march and drive off intruders from the Cherokee lands. It was done. Resistance being made, a contest ensued, blood was shed,and men were shot down and killed. Thus was this law enforced, only several years ago. Georgia then, as now, claimed her sovereignty on this country, and clamored loudly for it. But what interpretation did Georgia juries give of this act of President Monroe, which resulted in the killing of some of her citizens! The officer, Sir, (Col. Turk) was indicted, as were other acting under him, for murder! The were tried--tried in Georgia--by Georgia juries, and before Georgia judges, and acquitted! Yes, Sir, acquitted! By virtue of what? The paramount authority of this very law which now remains on the statute book a dead letter!
Believe me sir, your course was plainly before you. It is so now. Those were not in the interest of Georgia, endeavored to reach you with their experience and with the law, and the practice of your predecessors under this law. But the effort was unavailing. Good intentions of this sort were treated as might have been the approach of the enemy. I have said your course was plainly before you. What was it? Did Georgia demand the immediate execution of the compact of 1802? Your answer should have been in substance, 'all that can be done, consistent with the provisions of that instruments shall be done, to induce the Indians to remove.' Did Georgia claim the privilege to send her officers over the lines, dividing the Cherokee limits from the surrounding country, to 'survey' or 'mark' the country guaranteed to the Indians, either with, or without the law of her Legislature? Your answer should have been, 'I CANNOT ALLOW IT.' These four words would have been enough. Never would Georgia have ventured, without your concurrence, to violate a law of the Union. She is too wise for that. But having your sanction, she has put at defiance the laws of Congress--thrown the obligation of treaties to the winds, and, what is certainly to be regretted, left the President of the United States to bear the terrible responsibility of standing in a direct opposition, and refusing to enforce the law, which, by his oath, he is bound to execute!!!
I have said your course was plainly before you, and is so now. You have only to execute the law, and by so doing retrieve the errors of the past.
No man deplores more than I do the attitude which Georgia has assumed in regard to this question. To all eyes but her own, she is seen to be cruelly selfish. But your position is more deplorable still! You are the President of the United States. The laws are made by the people through their representatives. You are sworn to execute them.-- You have no alternative! The Constitution does not give any latitude to your options. If the laws of Congress are wrong, still whilst they are laws your obligation is direct. You have no power over them. It is not for you to decide upon their justice, or policy. If Congress shall declare war, you are bound, however you might desire it to be otherwise, to prosecute it. The law when constitutionally passed is your rule. You dare not refuse to execute it except at your peril, and in defiance of your oath. And yet it appears you have assumed THE PREROGATIVE of deciding that the laws of Georgia, touching this Indian question are of paramount obligation to the laws of the United States!!!
I will not convict you of wilful and deliberate perjury. I know, too well, how easy it is for the human mind to be misled. Yours is a peculiar case. Your late Attorney General held the doctrines which have involved you. It was natural
perhaps he should. He was literally the representative of Georgia. He entered your cabinet, as he has since told the world, with a special view to this question. He expounded the laws for you, and brought you (it might be natural to have thus succeeded,) to decide as you have. You adopted his interpretations, acted upon them, until the awful spectacle is exhibited to the eyes of the world of a Chief Magistrate, disregarding the laws, a law constitutionally made, and made for the protection of the weak--the practice of his predecessors, under it for nearly half a century, and what is more appalling, the obligations of his own oath!
The effects of all this are terrible! The Indians suffer--yes sir, suffer beyond the power of language to express--the honor of the nation suffers, and the hope which prophecy had created in this western world, is left to languish, and despair is seen and felt by a people, who have every possible claim to the sympathies of every just man, and just nation under Heaven.
You may redeem the errors of the past. Under better and wiser councils, I sincerely hope you may do so. I may address you again.
January 14, 1832