DEPARTMENT OF WAR,
Office Indian Affairs, 12th Oct.
SIR, I enclose herewith by direction of the Secretary of War, a copy of his letter to the Governor of Georgia on the subject of the contested boundary line between that State and the Cherokees. The President, as you will perceive, has instituted a Commission for the purpose of illiciting (sic) all the facts connected with the subject; and this is done that when a final decision is made, it may be upon grounds so firm, and sustained by facts so convincing, as to satisfy both parties.- Equal justice is saught (sic) to be administered.
Gen. Coffee has been appointed to execute the trust of collecting and reporting the facts in regard to this controversy of boundary- you will therefore possess him of such evidence, and facts, in support of the boundary claimed by you, as you may think it important for you to submit.
An order has been issued to Col. Montgomery, directing him to remove the intruders by the 15th December; - and to employ force to expel any that may remain after that period.
You will see in these acts new proofs of the disposition of the President to do you justice. He seeks, only, your welfare; and whilst he thus acts towards you in relation to those matters of boundary and intruders, he feels convinced that your happiness, and the future prosperity of your people, can be promoted, only, by your putting it in his power to protect you at all points, and minister to your welfare, in a country, and upon lands over which he can exercise his dispositions of kindness without coming in conflict with the sovereignty of States; and those other scarcely less formidable and destructive evils which beset you where you are.
I am, very respectfully
Your friend and Brother,
THO. L. McKENNEY.
To Mr. John Ross, Principal Chief of the Cherokees, East Mississippi.
DEPARTMENT OF WAR,
Oct. 14th 1829
SIR, The communications by you lately addressed to this department have been brought to the consideration of the President.
The points submitted for his decision are of unpleasant character, requiring on the one hand an examination into the authority which the state of Georgia may assert over the Territory within her chartered limits, and those rights, which by the usage of the country, and solemn treaty engagement, attach to the Indians.
The principle asserted by your legislature, of extending the laws of the state, throughout her own territorial limits, appeared in itself so reasonable and founded, that it was impossible under all the circumstances presented, to doubt as to the propriety of the measure. At an early period therefore, when this question arose, the Cherokees were given distinctly to understand, that it was not within the competency or power of the Executive to call in question the right of Georgia to assert her own authority within her own limits, and the President has been gratified to witness the extent to which a principle so reasonable in itself, and so vitally important to state sovereignty, has received the approbation of his fellow citizens. This oft asserted, and denied right being settle (sic) on the side of the state, to the extent that Executive interference could go, it was expected and hoped, that a little longer continuance of that forbearance which Georgia had so long indulged, was all that was wanted to assure to her, the purposes and objects she had before her; and after a manner too, to which philanthropy could take no exception.- The period was fast approaching, when by the enactments of the legislature, the laws of your state were to take effect, and become operative over the Red-man as the white. Murder no longer to continue as licensed crime on the plea of retaliation, was to yield itself to the rules of civilization, and to be examined into by a Jury of the country, before the accused should be made to atone-- crime by whomsoever committed was to be inquired into; and savage laws and savage habits, to give place to the more enlightened principles of experience and of reason.
Should the effect of this measure be to induce the Indians to remove from the territory in question, on receiving from the United States, all that they are justly entitled to, the President is satisfied that a result in the highest degree desirable will be effected, and by means the most unexceptionable.
Their removal west of the Mississippi, and beyond the range of state authority, would, he believes, greatly tend to better their condition, that it would carry with it, benevolence to them, and justice to the state of Georgia. His long and large experience in Indian affairs leaves no doubt with him on this point; and however much he respects the motives which have induced missionary societies and others, to meliorate the condition of the Indians, he nevertheless feels it a duty to employ all the rightful means which have been placed at his disposal, to produce more enlarged and beneficial results towards this peculiar race of people. If they can put in operation, and maintain a system of self direction, he is satisfied, that at least in its commencement, it must be under some well regulated assistance on the part of the government, and to be exercised at places where collisions as to state authority shall be avoided. But the years gone by, since the settlement of this country, induces an apprehension that the first; original inhabitants of our forests are incapable of self government, by any of those rules of right which civilization teaches. In all intercourse with their civilized white brothers, and the various efforts made, and expenditures incurred to inspire them with a knowledge of industry, and forgetfulness of their erratick (sic) habits, as yet success has not been attained. If they have yielded the barbarous practice of burning prisoners at the stake, they have not even after the laps of many years, and frequent association with the whites, surrendered the no less savage habit of considering women and children fit subjects for tomahawk and scalping knife. If a few have been educated at our schools, on returning to their original wilds, thro' force of the examples around them, they have fallen back upon the manners and customs of their ancestors, and assumed their habits as before. With all the liberal exertions made to relieve them from a state of bondage ' ignorance, but little of salutary change has been produced. Located as they are,no different results are to be expected. Every days observation shows, that the near association of the white and red-man is destructive of the latter. The history of our country throughout every quarter, teems with evidence establishing the truth of this assertion, and points to the necessity of a removal.
Previous to offering any opinion on the subject of your last communication, it occurred to me as proper to say thus (sic) much to you, in relation to those matters which heretofore have been in revision by the President.
The application now submitted, has been brought to the view of the President, and everything resting in connection with it fully considered.
The State of Georgia maintains, that the true separation between the Creeks and Cherokees is a line crossing the Chatahoochee at or near Suwanny (sic) Old Town, and stretching thence westwardly along an Old Indian trail to the Etowah River, and down its stream, leaving involved in the controversy something more than a million of acres of land. It is upon a portion of this territory, thus in dispute, as to who rightfully can claim, that certain citizens of Georgia have settled, and which now under Treaty stipulation, entered into between the United States and the Cherokees, are alleged to be intruders, and it is asked, that the government will employ its power to remove them.
On the other hand, it is asserted by the Cherokees, that the boundary division between themselves, and the Creek Indians is a line running from the Buzzard Roost on the Chatahooche (sic) River west, to the mouth of Wills Creek; and that this line has been recognized by the United States in the survey which took place in pursuance of the treaty of January 1826 concluded at Washington City.
While this application is pressed with full assurance of its propriety, the Executive of Georgia, acting under legislative instructions, demand that from this contested boundary the Indians shall be required to depart, and the military arm of the country employed for that purpose. Both demands cannot be acceded to; one or the other is right, and that which is right, must be sustained.
From information presented to this Department, furnished by Georgia, it appears, that in past time, the acknowledged line of seperation (sic) between the Creeks and the Cherokees, was across from Suwanny(sic) Old Town to the Sexas Village on the Etowah River; and that the line now claimed from the Buzzard Roost west, to Wills Creek is founded on an agreement entered into, or admission made, on the part of the Creeks in 1821, from which time to the present, it has remained the acknowledged boundary, and has been so admitted whenever the United States and Georgia have had reference to it. But it is insisted that this agreed line is to be held void, because the parties to the arrangement, the Creeks and Cherokees were incompetent to an alteration,as to their ancient boundary, without the actual, not constructive consent of the United States and Georgia, who are parties to the compact of 1802: the latter denying that any arrangement entered into by the Cherokees and the Creeks as to a boundary which affects her rights, and her domain, can have validity, unless accompanied by the sanction of the United States. The argument appears to carry with it force and plausibility; yet, it is such an one, as the Executive Chief magistrate will not undertake for the present to decide, choosing rather to refer it, to a different tribunal.
The compact in 1802 was made by the United States and Georgia. By that agreement all the territory of the State, west of a certain line was ceded, as a matter of condition the Indian title to lands within the then reserved limits of the State, early as practicable was to be extinguished for the use of Georgia. The Creeks and Cherokees were the only Tribes at that time within the limits of the state; and what their line and boundary of separation then was, appears to be the true point presented for considering, and settling this question.--If at that period, the boundary by both nations was supposed to be at or near the Buzzard Roost, and to run thence westwardly to Will's Creek; and that its establishment in 1821 was but the mere recognition of what before had been understood by and between the two nation, then should it be admitted, that the Cherokee claim to this disputed territory is fairly established, and the United States in virtue of their treaty engagements, placed under the necessity to protect them against intrusion upon their soil.
It is not admitted, that the Creeks and Cherokees were capable to contract, so as to alter their boundary, without the consent of the other parties in interest. If the Creeks could vary the condition of things, and by altering their boundary, place apart of their country at the disposal of the whole as well as a part, and to any other Tribe of Indians as to the Cherokees. And if it be conceded, that they possessed a power to transfer at all, then was it not necessary for it to take place with the Indians, inasmuch as the concession being made, it would enable them to convey it to any foreign power. The Indians of this country are under the restraints of our laws. It has been so considered, and so acted upon by the judiciary, as well as the legislature. Amongst other restraints is this, and which the Judicial Department of the Government has recognized as founded upon the established rules by Great Britain before her acknowledgment of our independence and our own legislation since, that to none other than the government can a sale and transfer of any portion of their soil be made, and that Indian title at best, is to be considered a mere occupancy. If a western line from Suwanny Old Town to the Etowah River, and down that stream formed the boundary between these tribes at the date of the compact in 1802, it is difficult upon principle to conceive how it could be changed without the assent of the United States, or even that such recognition and assent could have rendered it valid, apart from Georgia, who had the ultimate interest and right in the soil. By the law and previous usage, it was not competent for the Creeks to part with their lands to any other than to the United States; and if that shall be considered a valid authority, then is it a matter for solution, if the line of 1821 from the Buzzard Roost to Will's Creek may not be considered void for want of authority in the contracting parties to establish it.
Another point of view in which this subject may be considered is, that the United States and Georgia in making their compact in 1802, must have considered it in reference to the state of things, and of the parties to it, then existing, with no competent acknowledged authority to change these relations but with the consent of the parties contracting.- If the Creeks, placed under a necessity to part with their soil, could defeat the transfer by surrendering a portion to the Cherokees or to any other power, the force of the reasoning would still continue and oft as a successful effort to acquire the title from either should be made, some new claimant might present himself asserting a right under a previous understanding with those tribes, and thereby defeat from time to time, the just expectations of the government. Assent to the principle, and in future, when a cession shall be made by the Cherokees, the Chickasaws or some other nation of Indians may interfere and allege that by some former understanding their line had a particular location, by which they also assert a title, and thus a new purchase, and a new treaty be rendered necessary, as often as a new claimant under some plausible pretence could be produced, the embarrassments to which on such principles the government might hereafter be exposed in the purchase of Indian lands by permitting informal and irregular transfers and settlements to be regarded as evidences of title, are readily and at once to be perceived with much of injurious tendency to the public interest.
The proper ground to be assumed, being as it is considered a mere inquiry as to the boundary, is, whether the Indians without the consent of the United States and of the State of Georgia were capable to alter or change the boundary from what it was understood to be in 1802 and to refer the decision of the respective demands hence arising to the result to be arrived at, on a final inquiry and examination into this question.
These being the views entertained by the President on this subject, it is concluded by him to send some competent and faithful representative to ascertain far as practicable what is to be considered the actual and true boundary between the Creek and Cherokee Nations, the precise period at which the line from Buzzard Roost to Will's Creek was made, and the circumstances under which it was agreed upon, with whatever evidence calculated to disclose certainty, may be obtained. And which he is not disposed to countenance our red brothers in pretensions to which they are not entitled, from which by the irresistible decrees of fate they are excluded; some of which could be of no advantage to them if allowed, and which in the nature of things they would soon be under a necessity to relinquish, he nevertheless regards it an obligation of the most sacred character, to maintain a faithful guardianship towards them, and to preserve his administration of their affairs from the slightest imputation of injustice, and in a cordial cooperation of the authorities of Georgia to sustain him in the execution of this trust, he confidently relies.
Permit me in conclusion to observe, that the President is duly sensible of the patience and forbearance which the State of Georgia has exercised in the protracted and to her injurious delay to which the satisfaction of her just demand have been already exposed. He can make all proper allowances for any impatience she may occasionally evince upon a subject which to her is of such high interest and in regard to which the feelings of her citizens have already been sufficiently excited. He still however cherishes a hope, that the public functionaries of Georgia will adhere to their wonted magnanimity; that sensible of the delicate questions and fearful responsibilities which seldom fail to arise out of a conflict of rival sovereignty, and power, in relation to such a subject, they will, under the guidance of an enlightened patriotism, do all in their power to prevent them, and at all times in cheerfulness unite with the Federal government in avoiding even an appearance of practiced injustice towards the uncultivated and unhappy children of the forest.
To ascertain and determine all matters in difference, General Coffee of Alabama, has been requested to proceed to the Cherokee Nation, to arrange the testimony, and to present for the consideration and decision of the President everything in reference to the boundary. Such evidences as can be produced, will be examined and it is desirable that any information, in possession or reach of the Executive of Georgia, may be submitted to the commissioner on the part of the government, to be reported here. In the mean time, with a view to tranquility, and in justice to the Indians who have been, and are in possession, the Agent has been instructed to give notice for all intruders on Indian lands to retire by the 15th of December after which time those who remain will be forcibly removed agreeably to the provisions of the act of 1892.
I have the honour (sic) to be with great respect your ob't Serv't
JNO. H. EATON.
Gov. of Georgia.