NO. XII.

The next treaty is unique in its character; but all its provisions are in accordance with the principles of preceding compacts. It forcibly illustrates the change in the condition and prospects of the Cherokees, which had then commenced and has been constantly increasing.

TREATY OF THE CHEROKEE AGENCY OR FIFTEENTH COMPACT WITH THE CHEROKEES.

TITLE.

'Articles of a Treaty concluded at the Cherokee Agency within the Cherokee Nation, between Major Gen. Andrew Jackson, Joseph McMinn, Governor of the State of Tennessee, and General David Meriwether, Commissioners Plenipotentiary of the United States of America, of the one part, and the Chiefs, Head Men, and Warriors, of the Cherokee Nation, East of the Mississippi river, and the Chiefs, Head Men, and Warriors of the Cherokees on the Arkansas river, and their deputies, John D. Chisholm and James Rodgers, duly authorized by the Chiefs of the Cherokees on the Arkansas river, in open Council, by Written power of attorney, duly signed and executed in presence of Joseph Sevier and William Ware.'

Here surely are parties commissioners, and agents enough to make a treaty; but the preamble occupying an octavo page and a half, is still more remarkable. It declares, that in the year 1808, a deputation from the Upper and Lower Cherokee towns went to Washington; that the deputies from the Upper Towns signified to the President 'their anxious desire to engage in the pursuit of agriculture and civilized life, in the country they then occupied;' that the Nation at large did not partake of this desire; that the upper Towns wished, therefore, for a division of the country, and the assignment to them, of the lands on the Hiwassee; that, 'by thus contracting their society within narrow limits, they proposed to begin the establishment of fixed laws and a regular government; that the Deputies form the lower towns wished to pursue the hunter life, and with this view to remove across the Mississippi; that the President of the United States, 'after maturely considering the petitions of both parties,' wrote to them on the 9th of January, 1809, as follows: 'The United States, my children, are the friends of both parties; and, as far as can be reasonable asked, they are willing to satisfy the wishes of both. Those who remain may be assured of our patronage, our aid, and good neighborhood. Those who wish to remove, are permitted to send an exploring party to reconnoitre, etc.' That in the same letter, the President added -- 'When the party shall have found a tract of country suiting the emigrants, and not claimed by other Indians, we will arrange with them and you the exchange of that for a just portion of the country they leave, and to a part of which, proportioned to their numbers, they have a right;' and that, in conclusion, he told the emigrating Cherokees, that the United States would 'still consider them as our children,' and 'always hold them firmly by the hand.'

The preamble states further, that the Cherokees relying on the promises of the President of the United States, as above recited,' explored the country West of the Mississippi, made choice of land to which no other Indians had a just claim, and were desirous of making the proposed exchange of country:

'Now, know ye,' concludes the preamble, 'that the contracting parties, to carry into full effect the before recited promises with good faith, and to promote a continuation of friendship, ect., ect., 'have agreed and concluded on the following articles:'

Art. 1. The Chiefs, Head Men, and Warriors of the Cherokee Nation, cede to the United States all the lands laying North and East of the following boundaries: [The line here described left out a considerable tract of land, which fell into Georgia.]

Art. 2. The Cherokees also cede certain lands which feel into the central parts of Tennessee.

Art. 3. A census to be taken with a view to ascertain the number of emigrants; that is, the number on Cherokees who wish to remove across the Mississippi.

Art. 4. The annuities to be divided between the remaining and the emigrating Cherokees, in proportion to their numbers respectively.

Art. 5. In consideration of the lands ceded in the first and second articles of this Treaty, the United States engage to give an equal quantity of land, acre for acre, between the Arkansas and White Rivers, within certain boundaries mentioned.

This article closes with the following words: ' And it is further stipulated, that the Treaties heretofore between the Cherokee Nation and the United States are to continue in full force with both parts thereof, are entitled to all the immunities and privileges which the Old Nation enjoyed, under the aforesaid Treaties, the United States reserving the right of establishing factories, a military post, and roads, within the boundaries above defined.'

Art. 6. The United States to make full compensation for the improvements on land with the Cherokee Nation; which shall have belonged to the emigrating Cherokees, and to furnish flatbottomed boats and provision for their removal.

Art. 7. Improvements on land ceded to the United states to be paid for by the United States. There is a provision also, in this article, that the profit of the improvements mentioned in article 6th, shall be applied to the benefit of poor and decrepid Cherokees.

Art. 8. To every head of an Indian family residing on the lands ceded by the Cherokees in this treaty, shall be allowed a section of land, that is 640 acres, provided he wishes to remain on his land thus ceded, and to become a citizen of the United States. He shall hold a life estate with a right of dower to his widow, and shall leave the land in fee simple to his children.

Art. 9. Both parties to enjoy a free navigation of rivers.

Art. 10. The Cherokee Nation cedes to the United States certain small reservations, without the present limits of the nation.

Art. 11. The boundary lines to be marked.

Art. 12. No whites to enter upon the lands ceded, till the treaty 'shall be ratified by the President and Senate of the United States, and duly promulgated.'

Art. 13. The treaty to be in force as soon as thus ratified.

The treaty was signed on the 8th of July, 1871 by ANDREW JACKSON, and the other Commissioners, and by thirty-one Chiefs and Warriors for the Cherokees, who expected to remain east of the Mississippi, and fifteen Chiefs and Warriors for the emigrating Cherokees, in the presence of nine witnesses. It was ratified by President Monroe and the Senate.

It would seem as though the public affairs of the Cherokees had been so ordered by Providence, as to present the very strongest conceivable exhibition of the obligation of treaties. It has usually been thought, that if a single plain stipulation were made between two Nations, and duly ratified, this would bind the parties. I am now examining the fifteenth Treaty with the Cherokees, every one of which is perfectly consistent with every other; and they all unite in leading to the same conclusion. As if this were not sufficient, the personal character and political consistency of our most prominent statesmen not only lend their aid to confirm these national compacts; but are actually personified, as it were, and embodied in the Treaties. It may be doubted whether there is similar instance in the annals of mankind.

Gen. Washington, soon after the organization of our National Government, laid the basis of our Indian relations, in perfect consistency with the principles and practice of the early settlers and colonial rulers. Mr. Jefferson was a member of his cabinet, and doubtless intimately conversant with these fundamental measure. The five first Presidents of the United States made treaties with the Cherokees, all reasoning on the same acknowledged principles. Mr. Jefferson, the third President, having pursued the policy of Gen. Washington on this subject, with more undeviating zeal than on any other subject whatever -- being about to retire from the Chief Magistracy -- and standing mid-way between the era of 1789 and the present year, wrote a fatherly letter to the Cherokees, giving them his last political advice. This letter is preserved by them in their archives. A negotiation is held with them on their own soil, or as the title has it, 'within the Cherokee Nation,: under the direction of the fifth President of the United States. The letter of Jefferson is produced and incorporated into a treaty. It is therefore adopted by the people of our land and approved as among the national monuments erected for the defence of our weak neighbors. What adds to the singularity of the transaction is that this letter, reaching backward and forward through five administrations is adopted in the fifth, by a negotiator, who is now the seventh President of the United States; thus bringing all the weight of personal character and political consistency to support as plain stipulations as can be found in the English language, or any other. May it not be said, then, that the case of the Cherokees has been prepared by Providence, that we may show to ourselves, and to the world, whether engagements can bind us; or whether the imagined present interest of a small portion of the American people will transform itself into a Samson, and break national treaties by dozens, and by scores, 'as thread of tow is broken, when it toucheth a fire.'

If this case, should unhappily be decided against the Cherokees, (which may Haven avert!) it will be necessary that foreign nations should be well aware that the People of the United States are ready to take the ground of fulfilling their contracts so long only as they can be overawed by physical force; that we, as a nation are ready to avow, that we can be restrained from injustice by fear alone; not the fear of God, which is a most ennobling and purifying principle; not the fear of sacrificing national character, in the estimation of good and wise men in every country, and through all future time; not the fear of present shame and public scorn; but simply and only, the fear of bayonet and cannon.

But what does the letter of Mr. Jefferson, thus adopted and sanctioned, and made the mouthpiece of the nation; what does this letter, written after much deliberation and much experience, and on the eve of quitting public life, say to the Cherokees? -- It says, that the United States will always regard both branches of the Cherokee Nation as their children. (A good father, I suppose, does not tell lies to his children, nor break his promises that have been often repeated during the lapse of forty years.) It says, that the Cherokees of the Arkansas must enter upon lands claimed by other Indians, thus admitting that the wildest Savages have a claim to lands. It says, that all the individuals of the Cherokee Nation have a right to their country; and, therefore, if a part of the nation surrenders to the United States its right to lands East of the Mississippi, it must receive from the United States a right to lands West of that river. -- It says, that those Cherokees, who wish to remove, may emigrate with the good wishes and assistance of the United States, and those, who remain, may be assured, (yes, assured is the word of Mr. Jefferson, adopted by Gen. Jackson,) 'may be assured of our patronage, our aid and good neighborhood.' It would be difficult to make any comments upon this passage which would add to the impression which it cannot fail to make upon every fair and honorable mind.

The preamble says, that the Cherokees relied upon the promises of the United States, and took their measures accordingly. Whey should they not rely upon his promises? No President of the United States had broken faith with the Indians. But if these very promises and a thousand others, should not be broken, there will be an end of reliance on our promises; and out of tenderness to my country, and that we might not be unnecessarily reminded of the infamy thus laid upon in store for future generations, I could heartily wish, that none of our public functionaries may ever hereafter make a promise to an Indian.

WILLIAM PENN