April 26, 1824.
SIR: When you applied to me through Mr. JACOBS for an opinion upon this question whether the Cherokees had the power to collect a tax from the citizens of the United States residing within the nation, and having a license or permit to trade with the Cherokees, I was like ignorant of a (sic) the purpose for which it was desired, and the trouble it was to occasion. Had I foreseen that it was either to produce a difference of opinion, between any portion of your nation and those who administer the Federal Government, or to strengthen an opposition then existing, I would not have given any but such an opinion as then entertained was furnished, and that under circumstances which did not enable me to accompany it with the reasons upon which it was founded. Being now informed by you that the same question has been differently considered by others, and that you wish from me the reasons in support of my opinion, I proceed to comply with your request, as an act of justice to myself. In doing this, I wish you to bear in mind that but little reliance ought to be placed in my opinion, when opposed to gentlemen as much distinguished for the extent of their information as for the soundness of their judgment.
The Cherokees, if viewed as a nation, unfettered by treaty or compact with any other nation, would, undoubtedly, possess the power of establishing such a Government as would be pleasing to themselves; they would at the same time have the power of imposing a tax upon the persons or property within the limits of their territory, for the purpose of raising a fund to defray the expenses of that Government. The only questions then necessary to be considered are, whether they are to be viewed as a nation; whether they have entered into treaties or compacts with the United States; and in what condition they are at present placed by their own stipulations. I am under the impression, that, prior to the year 1791, their condition was viewed in different lights by different individuals. A small portion only of their means of subsistence was produced by the cultivation of the soil; they were neither agriculturalists nor herdsmen, but hunters, relying almost entirely for a subsistence upon the game they could procure. While in this state, many believed they had no permanent interest in the soil upon which they dwelt, and they were to be considered as tribes of savages, in whom little or no confidence could be reposed. Others believed they had an interest in the soil which they were found in possession of, ' this under persuasion made extensive purchases of them. In the year 1777, the State of North Carolina held a treaty with them, and fixed their boundary line almost at the very spot to which a previous purchase made by Brown had extended. This treaty, as I believe, speaks of them as a tribe, and allots to them a portion of country, as hunting ground. The Legislature of that State kept up the same idea in the different acts passed for the sale of her western lands. She always appeared to act upon the principle that they had no permanent interest in the soil; and that she had a right to curtail the limits, and make them a more limited allotment for their hunting grounds. In the Revolutionary War they had taken a part with Great Britain, and were viewed as having been conquered. The first treaty between them and the United States was on the 28th of November 1783. In that instrument, the term nation is seldom to be found, as applied to them; they are spoken of as a 'tribe' the 'Indians' the 'Cherokees'. The idea is most strongly communicated, from the whole tenor of the instrument, that they were viewed as a conquered tribe, not in a situation to insist upon the insertion of any one stipulation in their own favor, but submitting to whatever terms their conquerors chose to impose. In the 4th article, which fixes the boundary between them and the whites, they were not viewed as having a title to any lands; the terms used are, 'the boundary allotted to the Cherokees for their hunting grounds.' Not a hint is given that a desire was then felt that they should cease to be hunters, and become tillers of the earth. As was reasonably to have been anticipated, it was not long until another war took place between them and the whites, which lasted several years. The next treaty between them and the United States is dated the 2d. day of July, 1791. In the meantime the Constitution of the United States had been adopted.- Upon looking into this second treaty, we are at once struck with the remarkable contrast between the language here employed, and that used in the treaty of 1785. They are spoken of as a 'nation' in every place where they are alluded to; the word tribe is discontinued. Terms are used in the stipulations which communicate the idea that each party was free to act; that there was to be a confidence reposed by each party in the other.- The country to be acquired is spoken of as one owned by the Indians. Words proper for the conveyance to the United States of an interest in the soil are used by them in the 4th article: 'release, quit claim, relinquish and cede' all the lands, 'c. In the 14th article, a desire is manifested to reclaim and elevate them to the grade of herdsmen and cultivators of the soil; and this for the purpose of civilizing them; and for their encouragement, they are to be gratuitously furnished with the implements of husbandry. But what is of still greater importance, and perhaps a stronger inducement, they are made sure of a permanent home: by the 7th article, 'The United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded.'
It is believed this phraseology is continued in the subsequent treaties; and several additional inducements are held out, to increase the desires of Indians to adopt the habits and pursuits of civilized man. With this plain language before me, I am not at liberty to doubt but the Cherokees are to be considered as a Nation, a community, having a country distinctly marked out and set apart for their use; and fixed in it as the pledge and the faith of the United States can make it; in as much as they have solemnly guarantied it to them as a nation, without any limitation of time.- If, then, they are a nation, having a permanent interest in their lands, why is it that they are not as independent as any other nation? Why is it that they have not the same power to impose taxes, for the purpose of defraying the expenses of their internal Government, as the United States have? The answer must be that, if they do not possess this power, it is because they have lost their independence, in this particular, by virtue of some subsisting treaty between them and the United States. I now proceed to the examination of this question; but before consulting the treaties, will barely advert to a clause in the Constitution of the United States, which has some relation to this subject. In the 8th section of the 1st article it is said, Congress shall have power 'to regulate commerce with foreign nations, and among the several States and with Indian tribes.' I have never heard it intimated, and presume I never shall that, in consequence of these words, Congress have the whole power to regulate commerce with them; and therefore, they cannot impose a tax upon a merchant residing within their limits, because, by doing so, they would usurp a power vested exclusively in Congress.
To so crude a notion, it would be sufficient to suggest, that the words here used in relation to the Indians are precisely similar to those used in relation to foreign nations; and it is hardly presumable that it ever was expected, that, because Congress is vested with power to regulate commerce with foreign nations, she is therefore vested with the right of interfering with the municipal regulation of either France or Great Britain. The first treaty made by the United States with the Cherokees in that of Hopewell, dated 28th November 1785, before mentioned. The 9th article is in these words, 'For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of citizens or Indians, the United States in Congress assembled shall have the sole and exclusive rights of regulating trade with the Indians ' managing all their affairs, in such manner as they think proper.' In considering the political condition of the Indians, the powers which the United States can exercise over them, and the powers which they can themselves rightfully exercise, some have laid much stress upon this article, and made it the main source from which the powers of the Federal Government over them are derived.- Unless there is something more to be found upon this subject than is to be met with in the treaties, I incline to the opinion that it is not in force. Not long after it was formed, a war took place between the Indians and the whites, in all the forms with which such wars were then waged, and attended with most of their cruelties. The Indians either thought, or professed to think, that the whites had violated this treaty by encroaching upon the lands allotted to them, and making permanent settlements within their boundary. They waged a war which lasted a considerable time.- This war put an end to this treaty. It had no binding force upon either of the parties afterwards. If its provisions were ever again obligatory, it is not because they are found in this treaty, but because of some stipulation in some subsequent treaty. I do not wish to be understood as saying that a war always terminates every stipulation in a treaty; if the stipulations are such as have been entirely executed, or if they are such as are to be executed in case of a war, they may retain their force, notwithstanding the war; but such as these contained in the treaty I am now considering, and especially those contained in the 9th article, must and do terminate when war commences. Hostilities commenced and persisted in were the strongest possible indications that the Indians were determined the United States should not have the right of regulating the trade with them, not of managing any of their concerns. In the course of the war, the penalty for the infraction of the treaty was either exacted in the punishment inflicted, or an adequate compensation made upon the restoration of peace. It is obvious that this is a view which the United States have taken of this subject. The Treaty of Holston, dated 2d. of July, 1791, is called a treaty of peace and friendship. The 3d article stipulate a restoration of prisoners on each side. Why these things, if a war had not existed? They would be unaccountable. By comparing the provisions made in the Treaty of Holston with those contained in that of Hopewell, they are found to be often upon the same subjects. How is this to be accounted for, if we do not suppose those in the Treaty of Hopewell were no longer obligatory? But what places this matter in a strong light to my mind is the contents of the 1st article of the treaty in Philadelphia, dated 26th June, 1794.
Shortly after the Treaty of Holston a war took place, peace is re-established by the Treaty of Philadelphia, and the treaty of 'Holston'
is declared to be in full force, to all intents and purposes, as well with respect to the boundaries therein mentioned, as in all other respects whatever. The United States well know that, from the tenor of these treaties, the war put an end to the obligations of most, if not all their provisions; hence, at the termination of the war, there is an express declaration that the provisions of the prior treaty shall be, to all intents and purposes in force.
In the treaty of Holston there is no such stipulation or declaration in relation to the Treaty of Hopewell. Why was it omitted? Because neither of the parties intended its provisions should be any longer obligatory upon them. They had agreed upon different terms, and the new treaty contained every provision thought necessary. Again, if, when the Treaty of Philadelphia was made, the Treaty of Hopewell; or any of its provisions, was intended to be in force, why not make the same declaration in relation to it that was made in relation to the Treaty of Holston? No such declaration was made; and when there are express stipulations made in the Treaty of Holston; upon the same subjects treated of in that of Hopewell, and different language employed, I must believe it was with a view to change the idea. I am aware that some have believed the Treaty of Hopewell was revived by the 2d article of the Treaty of Tellico, dated the 2d day of October, 1798. It is in these words: 'The treaties subsisting between the present contracting parties are acknowledged to be of full and operating force, together with the construction and usage under their respective articles and so to continue.' If at this time there had been no treaties made with the Cherokees but those of Hopewell and Holston, there would be some plausibility in insisting that the parties by these expressions, alluded to those treaties; but after the Treaty of Holston, there was an article added to it in Philadelphia, in 1792; and in 1794 there was another treaty in Philadelphia, which had been duly ratified.
There was then the Treaty of Holston, the additional article and the treaty of 1794 subsisting at the time of using this language in the treaty of 1798; they are spoken of in the preamble of this very treaty as in force, and they are the treaties intended, as I conceive, when it is said the treaties subsisting are acknowledged to be in force, 'c. and not the Treaty of Hopewell, which is not named, and was not then a subsisting treaty.
Upon the same subject is the 1st article of the Treaty of Tellico, dated 25th day of October, 1805. It reads thus: ' All former treaties which provide for the maintenance of peace and preventing of crimes are on this occasion recognized and
continued in force.' Here again the terms recognized and continued in force communicate the idea that it was not intended to revive a treaty which had lost its force, but to acknowledge and continue those then subsisting; to take care that there should be no doubt as to their binding force and efficacy. At this time there were three or four subsisting treaties to be recognized and continued, without including in these expressions the Treaty of Hopewell, which had been annulled by the war, and never revived afterwards. It seems to me that if it had been intended to revive the Treaty of Hopewell, the same explicit language, to effect that object, would have been employed which was used in the Treaty of Philadelphia to revive the Treaty of Holston; and that the United States who are not only remarkable for their food faith, but for not furnishing even plausible evidence of a want of it, would have caused their negotiator to use a language upon this subject, in the treaty itself, not to be misunderstood!
I am the more inclined to think it was not intended to revive the Treaty of Hopewell by the expressions here used, because the only stipulation in that treaty, of importance to the Indians, and not included in subsequent treaties, is, that in the 12th article, which provides for their sending a deputy to Congress, which I do not well see how they could revive, after this formation of the Constitution of the United States, so as to make it of any use to the Indians.
To the Treaty of Holston, then, and to those of later date, I think we should recur, to ascertain the political condition of the Indians, and ought only to refer to that of Hopewell to enable us better to understand what construction it ought to receive.
The 6th article of the Treaty of Holston is in these words: ' it is averred, on the part of the Cherokees, that the United States shall have the sole and exclusive right to regulate their trade.' Upon the true meaning of these words, in this instrument, mainly depends the question, whether the Cherokee nation have the power to impose any tax. If by these expressions we understand the United States had the exclusive rights of regulating the internal concerns of the Cherokee Nation, they will have undertaken a Herculean task.
These people are now to be viewed as a nation possessing all the powers of other Independent nations, which are not expressly, or by necessary implication, surrendered up by this treaty.
What powers are yielded up?
In the 24 article (sic) they acknowledge themselves to be under the protection of the United States, and of no other sovereign whatsoever; and also stipulates that they will not hold any treaty with any foreign power, individual State or with individuals of any State. In the 5th article they stipulate that the United States shall have the free and unmolested use of a road from Washington district to Mero District, and of navigating the Tennessee River. In the 10th they stipulate that if any Indian, or person residing among them, or who shall take refuge in their nation, shall steal, commit murder or other capital crimes on the citizens of the United States, they shall be bound to deliver him up to be punished according to the laws of the United States.
In the 11th it is provided that if any citizen
or inhabitant of the United States shall go into any town, settlement, or territory belonging to the Cherokees, and there comport a crime or trespass, he shall be proceeded against and punished as if committed in the district to which he may belong. In the 13th the Cherokees, stipulate that they will give notice to the citizens of the United States of any hostile design formed by a neighboring tribe, 'c. In the 7th article of the Treaty of Tellico, dated 26th October 1805, it is stipulated that the United States shall have the free and unmolested use of two additional roads running through their country. And by the 21 article of the Treaty at Tellico, there is a stipulation to permit a post road to pass through their country towards New Orleans. These different articles it is believed, comprehend all the stipulations for a surrender of powers to the United States; and what do they amount to?
First. An agreement that they will not make a treaty with any other nation, State, or individual.
Second. That the United States shall have the free and unmolested use of several roads through their country, which was necessary to enable the United States conveniently to enjoy that portion of their own territory to which the Indians had not claim.
Third. That Indians or Indian countrymen, coming within the limits of the United States, and committing crimes or citizens who might commit crimes in the nation, or who should take refuge in the nation after having committed crimes in their own country should be surrendered up to be tried and punished.
Fourth. That the United States shall have the sole and exclusive right to regulate their trade.
With these different provisions before us we are to some degree furnished with the means necessary to fix a construction upon the sixth article before mentioned. It must be kept in mind that the great objects the United States had in view were to secure permanent peace with the Cherokees, and insure their lasting friendship, elevating them to the rank of a nation, by reclaiming them from the state of hunters to that of agriculturists, and by bringing them from the state of a wandering, ignorant race, to that of enlightened, civilized men. To attain these objects it was of primary importance to have them rely exclusively upon the protection of the United States when in danger from their enemies, and to put it out of their power to form connexions (sic) by treaty with other sovereigns, with any State, or with individuals. By these means, and these only, could that intimate connexion (sic) be formed and continued which was essential to the attainment of their objects.
[To be Concluded.]