Correspondence between Mr. Wirt and Governor Gilmer, of Georgia.
Baltimore, June 4th 1830
Sir.- A just respect for the State of Georgia, and a desire to avoid a misrepresentation which might be attended with evil consequences, seem to me to call for a communication which, under other circumstances, might will be deemed officious, and intrusive. The excitement with regard to the Indians within your borders is already so high, and, in this state of feeling, measures of the most innocent character are so easily misapprehended and converted into causes of offence, that I persuade myself your Excellency will at least approve the motive of this letter as a measure of peace.
The Cherokee nation have consulted me, professionally, as to their rights under their various treaties with the United States. Among other questions they have asked me whether, under the federal constitution, laws and treaties, the State of Georgia has the right to extend her laws compulsively, into their nation; and whether this question can or cannot be carried for decision to the Supreme Court of the United States? I am fully aware of the serious import of these questions, and regret exceedingly that they have arisen. I foresee distinctly the disastrous consequences which may be made to flow from giving the controversy this direction: and yet if it be met and conducted with proper temper, as I trust it will, it is quite as apparent that it may prove the means of peace and reconciliation. I have not sought this consultation. It has been cast upon me in the common and regular practice of my profession; and according to my understanding of my professional duties, I am not at liberty to refuse either my advice or services to any one who comes to consult me on his legal rights, and who has nothing more in view than the assertion of those rights according to the course of the laws of the land.
It is my misfortune to differ with the constituted authorities of the state of Georgia, on the question of her power to extend her laws into the Cherokee nation: and the late debates in Congress will satisfy your Excellency that in this opinion I am not singular, but that I hold it in common with many of the most distinguished lawyers on our continent. We amy be wrong; and, as infallibility is not the lot of mortals, those who hold the opposite opinion may possibly be wrong. Fortunately there exists a tribunal before which this difference of opinion may be quietly and peaceably settled, and to this tribunal I think it maybe regularly referred. I perceive that in the debates to which I have alluded, a mistaken humanity has been supposed to warp the judgement on one side of this question, and interest on the other. In the Supreme court of the United States, we shall find a tribunal as impartial and as enlightened as can be expected on this earth; or if partiality can be supposed to find its way into that high tribunal, on any occasion is not on such a one as this that the Cherokee nation have a right to expect it in their favor. To them the courts of the United States are foreign courts, while they are the domestic tribunals of the States of the Union.
I have told these people that I am willing to assist them in bringing their rights for final decision before the Supreme Court of the U. S. on the condition that they conduct themselves peaceable towards the people of Georgia, and of the United States, ' that they make the question purely a question of law for our courts: but that I will abandon them and their cause on the first aggression by violence on the white people around them which shall be authorised (sic) by their nation. It is but justice to add that in those of the nation who have been with me, ' who composed the delegation that have been at Washington thro' (sic) the winter, I have not discovered the slightest disposition to violence. They are civilized ' well informed men-they were our dress-speak our language correctly and in their manners indicate all the mildness and much of the culture and courtesy of our own best circles. They assure me that their people at home have abandoned the habits of savage life and subsist by agriculture and the other usual and peaceful pursuits of civilized societies. They profess, and I believe, with entire sincerity, to be willing to make the questions of their rights under their treaties, questions of pure law, for the decision of our own courts; and as I perceive by the reported debate in Congress that a measure of this sort has been anticipated, and that one of your enlightened Senators in that body expressed a strong, and without doubt, a sincere conviction that the decision of the Judiciary would, if it should ever be asked, be in favor of the right of the State to legislate over the Cherokee nation, I cannot but indulge the hope that in proposing to bring this question before the Supreme Court, I shall have advised a measure rather pleasing than otherwise to the State of Ga.
Be this as it may, I cannot reconcile it to my own sense of propriety to have any agency in this affair without apprising your excellency frankly and respectfully of what is intended. I desire to have it distinctly understood, on every hand, that neither these people nor their counsel aim at anything more in this movement, that an open, peaceable and respectful appeal to the opinion of our own courts, the courts of the Union.
Your Excellency will not understand one as asking or expecting that you will take the trouble to answer this letter. My object is single and sincere; it is simply to avoid all appearance of concealment, and all misapprehension or surprise on the part of the State of Georgia, by advising your Excellency fairly and openly, of the measure in contemplation and by assuring you that there is no other purpose in view that a quiet, peaceable and respectful reference of the questions of laws and right in dispute between the State of Georgia and the Cherokee People, to the highest court of our nation, the Supreme Court of the United States.
Your excellency will permit me to assure you, further, that in the future measures which may grow out of this controversy, so far as they shall be under my direction, care will be taken to give as little trouble as possible to the constituted authorities of Georgia, and that the discussion will be conducted with all the respect for that State ' its laws which may consist with the proper assertions of what I consider the rights of this unfortunate people.
The decision may be expedited by making a case, by consent, if that course should suit the views of the State of Georgia. It is not asked, however, but suggested merely for your consideration, with an assurance that if it should meet your approbation the Cherokees will cheerfully concur in the measure.
The motives which have led me to trouble you with this communication, make it equally proper, I think, that I should submit a copy of it to the President of the United States; and I shall place another copy in the hands of the Cherokee delegation, in order that they may distinctly see and remember the conduct which is expected from their people, and what, alone, they have a right to expect from me.
I have the honor to remain, Sir, most respectfully, your obedient servant. WM. WIRT.
His Ex. George R. Gilmer
Governor of Georgia.
EXECUTIVE DEPARTMENT. GEO.
Milledgeville, 19th June, 1830
Sir- Your communication addressed to the Governor of Georgia has been received informing him of your employment by the Cherokee Indians to defend them against the operation of the laws of the State, and proposing a reference of what you have thought proper to call the dispute between the Cherokee nation ' the State of Ga., to the supreme court of the United States. The Governor of Georgia knows no reason why he should be notified that professional duty required of you to take fees of all who ask your advice. Georgia claims no jurisdiction over the Lawyers of Maryland. Your justification will have become appropriate when that State interferes with your professional business. Why it should be the misfortune of a citizen of Maryland ( as you say it is yours) to differ with the constituted authorities of Georgia, is not very clearly understood. You are neither responsible for the legislation of the State, nor subject to its control. There is no doubt but that many of the Lawyers distinguished like yourself ( as you say) profess to believe that the State has usurped authority and violated the faith of treaties in passing laws for the protection of the rights and punishing the crimes of the Indian people who reside within its limits. It is known that the extent of the jurisdiction of Georgia and the policy of removing the Cherokees and other Indians to the west of the Mississippi have become part questions. It is not therefore surprising that those who engage in the struggle for power, should find usurpation and faithlessness in the measures of the Government accordingly as the loss of office, or the hope of its acquisition may enlighten their understanding. What you say of the fallibility of the constituted authorities of Georgia is a truism of universal application, and can have no meaning but by your intention to render the application particular.
You say that the Supreme Court of the United States is a high,impartial, and enlightened tribunal. Why this commendation?
The promise you make to use your professional influence to prevent your clients the Indians from committing violence upon the people of Georgia is very kind coming as it does from a private citizen of another State and will without doubt create an obligation upon the people whose safety is intended, commensurate with the favor to be received.
There are no fears felt in Georgia of Indian violence, although it is highly probable that your efforts will be productive of some mischief. It is believed that the Cherokees in Georgia had determined to unite with that portion of their tribe who had removed to the west of the Mississippi if the policy of the President were sustained by the Congress. To prevent this result as soon as it became highly probable that the Indian bill would pass, the Cherokees were persuaded that the right of self government could be secured to them by the power of the Supreme Court in defiance of the legislation of the General and State Governments. It was not known however, until the receipt of your letter that the spirit of resistance to the laws of the State and views of the United States which have of late been evident among the Indians had a (sic) any manner been occasioned by your advice. Although insurrection among the Indian people of Georgia may be the consequence of your proceedings and those who act in unison with you, the constituted authorities of the State disclaim all right to interfere with you in any manner so long as you keep yourself beyond the jurisdiction of the State.
You have thought proper to give the Governor of Georgia an account of the civilization of the Cherokees, describing those whom you have known, to be polished gentlemen, and those whom you do not know, to have ceased to be savages. What you say of the intelligence of the members of the Cherokee tribe who were in Washington City last winter is partly true and equally descriptive of many others.- They are not Indians however, but the children of white men, whose corrupt habits or vile passions led them into connection with the Cherokee tribe. It is not surprising that the white men and the children of white men have availed themselves of the easy means of acquiring wealth which the Cherokee territory has presented for thirty of forty years; nor that intelligence and spirited activity should increase with their increased wealth; not that when wealth intelligence and industry were confined to the whites and the children of white men that the power over the tribe should become centered in the same hands. But that these causes were calculated to produce similar effects upon the Indians, the real aborigines, is disproved by every example among the thousands which the experience of the two last centuries has furnished in every part of this continent. The Cherokees have lost all that was valuable in their Indian character, have become spiritless, dependent and depraved, as the whites and their children have become wealthy, intelligent, and powerful. So long as the Cherokees retained their primitive habits no disposition was shown by the States under the protection of whose Government they resided, to make them subject to their laws. Such policy would have been cruel, because it would have interfered with their habits of life, the enjoyments peculiar to Indian people and the kind of Government which accorded with those habits and enjoyments. It was the power of the whites and their children among the Cherokees that destroyed the ancient laws, and subjected the natives to the rule of the most oppressive of Governments, an Oligarchy. There is nothing surprising in this result. From the character of the people and the causes operating on them it could not have been otherwise. It was this state of things that rendered it obligatory upon the State of Georgia, to vindicate her rights of sovereignty by abolishing all Cherokee Government within its limits. Whether intelligent, or ignorant the state of Georgia has passed no laws violative of the liberty, personal security, or private property of an Indian. It has been the object of humanity and wisdom, to separate the two classes among them, giving the rights of citizenship to those who are capable of performing its duties and properly estimating its privileges, and increasing the enjoyment, and the probability of future improvement to the ignorant and idle, by removing them to a situation where the inducements to action will be more in accordance with the Cherokee people.
Your suggestion that it would be convenient and satisfactory, if yourself, the Indians, and the Governor, would make up a law case to be submitted to the Supreme Court for the determination of the question whether the legislature of Georgia has competent authority to pass laws for the Government of the Indians residing within its limits, however courteous the manner, and conciliatory the phraseology cannot but be considered exceedingly disrespectful to the Government of the State. No one knows better than yourself that the Governor would grossly violate his duty and exceed his authority by complying with such a suggestion, and that both the letter and spirit of the powers conferred by the Constitution upon the Supreme Court forbids its adjusting such a case. Your suggestion is but an evidence of the state of that contest in which the advocates of power, are exerting themselves to increase the authority of the Department of the General Government whilst the friends of liberty and the rights of the people are in opposition endeavouring (sic) to sustain the sovereignty of the States. It is hoped that the efforts of the General Government to execute its contract with Georgia, to secure the continuance and advance the happiness of the Indian tribes, and to give quiet to the country, may be so effectually successful as to prevent the necessity of any further intercourse upon this subject.
GEORGE R. GILMER.
William Wirt, Esq.