The Secretary of War to the Cherokee Delegation

(COPY.)

Deparatment of War,

April 18, 1829.

To Messrs. John Ross, Richard Taylor, Edward Gunter, amd William S. Coody, Cherokee Delegation.

Friends and Brothers. Your letter of the 17th of February addressed to the late Secretary of War, has been brought to the notice of this Department, since the communication made to you on the 11th inst.; and having conversed freely and fully with the President of the United States, I am directed by him to submit the following as the views which are entertained, in reference to the subjects which you have submitted for consideration.

You State that 'the Legislature of Georgia, in defiance of the laws of the United States, and the most solemn treaties existing,' have extended a jurisdiction over your nation to take effect in June 1830. That 'Your nation had no voice in the formation of the confederacy of the Union, and has even been unshackled with the laws of individual States, because independent of them;' and that consequently this act of Georgia is to be viewed, 'in no other light, than a wanton usurpation of power, guaranteed to no State, neither by the common law of the land, nor by the laws of nature.'

To all this, there is a plain and obvious answer, deducible from the known history of the country. During the war of the Revolution, your nation was the friend and ally of Great Britain; a power which then claimed entire sovereignty, within the limits of what constituted the thirteen United States. By the Declaration of Independence and subsequently the Treaty of 1783, all the rights of sovereignty pertaining to Great Britain, became vested respectively in the original States of this Union, including North Carolina and Georgia, within whose territorial limits, as defined and known, your nation was then situated. If, as is the case, you have been permitted to abide on your lands from that period to the present, enjoying the right of soil and privilege to hunt, it is not thence to be inferred, that this was any think more than a permission growing out of compacts with your nation; nor is it at circumstance whence, now to deny to those States, the exercise of their original sovereignty.

In the year 1785, three years after the independence of the States, which compose this Union, had been acknowledged by Great Britain, a treaty, at Hopewell, was concluded with your nation by the United States. The emphatic language it contains cannot be mistaken, commencing as follows -- 'The commissioners plenipotentiaries of the United States in Congress assembled, give peace to all the Cherokees and receive them into favor and protection of the United States in Congress assembled, give peace to all the Cherokees and receive them into favor and protection of the United States of America.' It proceeds then to allot and to define your limits and your hunting grounds. You were secured, in the privilege of pursuing the game; and from encroachments by the whites. No right however, save a mere possessory one, is by the provisions of the treaty of Hopewell, conceded to your nation. The soil, and the use of it, were suffered to remain with you, while the sovereignty abided, precisely where it did before, in those States, within whose limits you were situated.

Subsequent to this your people were at enmity with the United States, and waged a war upon our frontier settlements; a durable peace was not entered into with you, until 1791. At that period a good understanding obtained, hostilities ceased, and by the treaty made and concluded, your nation was placed under the protection of the Government, and a guarantee given, favorable to the occupancy and possession of your country. But the United States, always mindful of the authorities of the States, when treating for what was so much desired, peace with their red brothers, forbare to offer a guarantee adverse to the sovereignty of Georgia. They could not do so: they had not the power.

At a more recent period, to wit: 1802, the State of Georgia, defining her own proper limits, ceded to the United States, all has western territory upon a condition which was accepted, 'that the United States shall, at their own expense, extinguish of the use of Georgia as early as the same can be peaceably obtained on reasonable terms the Indian title, to all the lands with the State of Georgia.' She did not ask the military arm of the Government to be embearance, only, that the soil might be yielded to her, so soon as it could peaceably be obtained ' on reasonable terms. In relation to sovereignty nothing is said; or hinted at in the compact; nor was it necessary or even proper, as both the parties to the arrangement well knew that it was a right which already existed in the State in virtue of the Declaration of our Independence, and of the treaty of 1783 afterwards concluded.

These things have been made known to you frankly, and after the most friendly manner; and particularly at the making of the treaty with your nation in 1817, when a portion of your people stipulated to remove to the west of the Mississippi; and yet it is alleged in your communication to this Department, that you have 'been unshackled with the laws of individual States, because independent of them.'

The course you have pursued of establishing an independent, substantive government, within the territorial limits of the State of Georgia, adverse to her will, and contrary to her consent, has been the immediate cause, which has induced her, to depart from the forbearance, she has so long practiced; and in virtue of her authority, as a sovereign, independent State to extend over your country, her Legislative enactments, which she, and every State embraced in the confederacy, from 1783 to the present time, when their independence was acknowledged and admitted, possessed the power to do, apart from any authority, or opposing interference by the General Government.

But suppose, and it is suggested, merely for the purpose of awakening your better judgment, that Georgia, cannot, and ought not, to claim the exercise of such power. What alternative is then presented? In reply allow me to call your attention for a moment to the grave character of the course, which under a mistaken view of your rights, you desire this Government to adopt. It is no less than an invitation, that she shall step forward to arrest the constitutional acts of an independent State, exercised within her own limits. Should this be done, Georgia persist in the maintenance of her rights, and her authority, the consequences might be, that the act would prove injurious to us, and in all probability ruinous to you. The sword might be looked to as the arbiter in such an interference. But this can never be done. The President cannot, and will not, beguile you with such an expectation. The arms of this country can never be employed, to stay any State of the Union, from the exercise of these legitimate powers which attach, and belong to their sovereign character. An interference to the extent of affording you protection, and the occupancy of your soil is what is demanded of the just of this country and will not be withheld; yet in doing this, the right of permitting to you the enjoyment of a separate government, within the limits of a State; and of denying the exercise of sovereignty to that State within her own limits, cannot be admitted: It is not within the range of powers granted by the States to the General Government and therefore not within its competency to be exercised.

In this view of the circumstances connected with your application, it becomes proper to remark that no remedy can be perceived, except that which frequently, heretofore has been submitted for you consideration, a removal beyond the Mississippi, where, alone, can be assured to you protection and peace. It must be obvious to you, and the President has instructed me to bring it to your candid and serious consideration, that to continue where you are, within the territorial limits of an independent State can promise you nothing but interruption and disquietude. Beyond the Mississippi your prospects will be different. There you will find no conflicting interests. The United States power, and soverignty uncontrolled by the high authority of State jurisdiction, and resting on its own energies, will be able to say to you, in the language of our own nation, the soil shall be yours while the trees grow, or the streams run. But situated where you now are, he can not extend to you such language, or consent to beguile you, by inspiring in your bosoms hopes and expectations, which can not be realized -- Justice and friendly feelings cherished towards our red brothers of the forest demand that in all our intercourse, frankness should be maintained.

The President desires me to say, that the feelings entertained by him towards your people are of the most friendly kind; and that in the intercourse heretofore in past times so frequently had with the Chiefs of your nation, he failed not to warn them of the consequences, which would result to them from residing with the limits of sovereign States. He holds to them now, no other language than that which he has heretofore employed; and in doing so feels convinced that he is pointing out that course which humanity and a just regard for the interest of the Indian will be found to sanction. In the view entertained by him of this important matter, there is but a single alternative, to yield to the operation of those laws which Georgia claims, and has a right to extend throughout her own limits, or to remove, and by associating with your brothers beyond the Mississippi, to become again united as one nation, carrying along with you that protection, which, there situated it will be in the power of the government to extend.- The Indians being thus brought together at a distance from their white brothers, will be relieved from very many of those interruptions which situated as they are of present, are without remedy. The government of the United States will then be able to exercise over them a paternal, and superintending care to happier advantage; to stay encroachments and preserve them in peace and amity with each other: while with the aid of schools a hope may be indulged, that ere long industry and refinement will take the place of those wandering habits now so peculiar to the Indian character, the tendency of which is to impede them in their march to civilization.

Respecting the intrusions on your lands submitted also for consideration, it is sufficient to remark,that of these the Department had already been advised, and instructions have been forwarded to the Agent of the Cherokees, directing him to cause their removal; and it is earnestly hoped, that o this matter, all cause for future complaint will case, and the order prove effectual.

With great respect, your friend,

Signed, JOHN H. EATON