Cherokee Phoenix


Published December, 16, 1829

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It is well known, Messrs. Editors, that a long series of numbers, on a single subject, is not apt to be read: especially if it be of the nature of a legal diplomatic discussion. On this account I have felt many misgivings in calling upon the public to follow me from one stage to another of the negotiations, with the Cherokees; but I have been advised that no part of the preceding numbers could be omitted without injury to the cause. If I were arguing before the Supreme Court of the United States, a simple reference would, in many cases, be sufficient, where I have felt it necessary to make quotations. Yet I think any candid lawyer will admit, that, if he were pleading the cause of the Indians before the highest tribunal in our country, he would be constrained by faithfulness to his clients, to dwell much longer upon some topics than I have done. Let it be remembered, that the honest, fair-minded, intelligent members of the American community are to decide this question; or at least that they may decide it justly and properly, if they will take the trouble to understand it, and will distinctly and loudly express their opinions upon it.

And here let me humbly intreat (sic) the good people of the United States, to take this trouble upon themselves, and not to think it an unreasonable task. Let each intelligent reader consider himself a juryman in the case; ' let him resolve to bring in such a verdict as he can hereafter regard with complacency. It is not a single man who is on trial, and who may lose his life by the carelessness of the jury. Sixty thousand men, women and children, in one part of the United States, are now in constant expectation of being driven away from their country, in such a manner as they apprehend will result in their present misery and speedy extermination. Sixty thousand human beings, to whom the faith of the United States has been pledged in the most solemn manner, to be driven away- and yet the people of the United States unwilling to hear their story, or even to require silence till their story can be heard!

I am encouraged, Messrs. Editors, to proceed, by the assurance which has reached me from different quarters, that our community is not callous to every feeling of justice and honor, in relation to the Indians; that there is a greater disposition to inquire on this subject than on any other now before the public; and that even my numbers, deficient as they are in vivacity, are extensively read with that interest, which the magnitude of the cause, in all its bearing may well excite.

A few remarks upon the treaties with the Cherokees may not be useless.

It is a natural inquiry, Have there been any attempts to treat with this nation since the year 1819? There have been many; and although the Statesmen of Georgia now think that the United States have no power to make treaties with the Indians, it is not more than one or two years since they were urging Congress to make appropriations for this object, and pressing the Executive to procure the Cherokee country, by negotiation. In regard to this matter, they have been very importunate. Mr. Monroe was teased by them during his whole presidency. Their scruples, as to the extent of the treaty-making power, are of quite recent origin; and it is supposed that they would not vehemently remonstrate, if a treaty should now be made, the terms of which would compel the Cherokees to take up their residence near the shade of the Rocky Mountains. The scruples about the treaty-making power seem not to have existed till after the Cherokees refused to treat any more. When chiefs and people had thus refused, at home and abroad, in their own territory and at Washington-when they had declared in writing, that there was not money enough in our national treasury to purchase an additional foot of land; and when these declarations were made with a determination and constancy which left no hope of forming a treaty, then it was discovered, that the government or the United States possessed no power to make a treaty.

In my third number I observed, that it is of little importance whether the Treaty of Hopewell is in force now, or not; and that Judge White, of Tennessee, supposed it to be abrogated. All the most material parts of the treaty are incorporated into the Treaty of Holston. There is one provision, however, not thus incorporated; viz: that the Cherokees may send a Deputation of their choice to Congress. Though this Treaty of Hopewell was made under the old Confederation, if it is in force, good faith would require that the Cherokees should now be allowed a privilege tantamount to sending a Deputy to Congress at the time that treaty was made.

The following reasons which have become apparent in the course of this investigation, satisfy me that the Treaty of Hopewell is still in force:

1. In all subsequent treaties, there is no intimation, not even the most obscure, that this treaty, or any other, had been abrogated, annulled, or superseded.

2. In the second Treaty of Philadelphia, 1794, the United States give money 'to evince their justice' to the Cherokees, for relinquishments of lands by the Treaty of Hopewell and the Treaty of Holston. Here both treaties are mentioned in precisely the same manner, which would hardly have been the case if one had been abrogated, while the other was the foundation of all subsequent treaties.

3. The first article of the third Treaty of Tellico, 1805, is in these words; 'All former treaties which provide for the maintenance of peace and preventing of crimes, are, on this occasion, recognized and continue in force.' The Treaty of Hopewell was a former treaty which was directed wholly to the maintenance of peace and the preventing of crimes.

4. In the second treaty negotiated by General Jackson, 1817, it is stipulated, that 'the treaties heretofore [made] between the Cherokee Nation and the United States are to continue in full force.' The phrase 'the treaties' means the same as all treaties.' It is not probable that all these documents were before Judge White, when he arrived at the conclusion above stated. At any rate they will probably lead most readers to a directly opposite conclusion.

Here, then, we have sixteen treaties with the Cherokees, negotiated from 1785 to 1819, ratified by five Presidents, all resting upon the same principles, all consistent with each other, and all now in force, except that some parts may have become obsolete by subsequent stipulations on the same subjects. The earlier treaties are repeatedly and solemnly recognized by later ones. An official letter of Mr. Jefferson is curiously wrought into a treaty, so as to form a connecting band to the whole system. In the last treaty of all, negotiated by the present Vice-President of the United States, a law of Congress is introduced for the permanent defence of the Cherokees.

If we look into other treaties with Indians, from the Delaware Treaty of 1778, (from which a quotation was made in my ninth number) to the Creek Treaty of 1826, the same inviolable territory, the same solemn guaranty, the same proffer of friendship and good neighborhood, will everywhere be found. So many treaties had been formed with Indians previously to 1810, that Mr. Justice Johnson pronounced them 'innumerable.' In none of these treaties is the original title of the Indians declared to be defective. In none of them is it said that Indians have not the power of self-government, or that they must come under the government of the States. In no case have the Indians signed away their inheritance or compromitted their independence. They have never admitted themselves to be tenants at will or tenants for years. Upon the parchment all stands fair; and so far as their present engagements extend, they are under more no obligation to leave their country than are the inhabitants of Switzerland to leave their native mountains.

What is the evidence brought against this mighty mass of treaties?- Nothing; absolutely nothing. The Secretary of War merely says, that the Cherokees were permitted to remain on the lands of Georgia. But where is his authority?

If we turn from the treaties to the laws of the United States, we find the whole system of legislation made in exact accordance with the treaties. Nearly all these compacts required appropriations of money. When the appropriations were made the Treaties came of course under the view of both Houses of Congress; and every such appropriation was of course an assent of Congress to the treaty.

Besides, some of the most important articles of treaties were taken from previous existing laws of Congress. Thus, the 11th article of the Treaty of Holston is taken from the treaty made with the Creeks at New York, August 7th, 1790, where it was inserted verbatim, from 'an act to regulate trade and intercourse with the Indian tribes,' which was approved by President Washington only sixteen days before.

This discovery I have just made, and consider it as decisive evidence that the treaty with the Creeks was a measure of great deliberation, and that the eminent men of that day labored to make every part of their political system harmonize with every other part.

If we leave both laws and treaties, ' look at the conduct of our Government towards the Indians, we find the professions of Indian agents to have been always directed to this one point, viz: to satisfy the Indians that the government would deal justly and faithfully by them, would perform all its engagements, and would secure to them the permanent possession of their country. They were constantly urged to become farmers, to educate their children, and form a regular government for themselves, and this avowedly with a view to their permanent residence. This was done by Gen. Washington, by Mr. Jefferson, by Mr. Madison, by Mr. Monroe, as can be shown from published documents and probably by the elder Adams and his son.

To treaties, laws, usage, every public and every private pledge, are to be added the dictates of reason and common sense, and the principles of immutable justice. All these stand on the side of the Cherokees. Still Georgia demands all the lands which lies within what are called her chartered limits. The nature of this demand will be examined hereafter.


*This number was mislaid by the editors of the Intelligencer, and hence it appears out of its proper place in the series.

Eds. Obs.