This issue of the Cherokee Phoenix is published in 4 columns only.
From the North American Review.
REMOVAL OF THE INDIANS--
CASE BROUGHT HOME.
So many plausible words have been used, and there has been so much parade of reasoning on the subject of State rights, and conflicting powers, that some respectable and honorable men have been misled. The scene is distant from the northern States. A dimness is cast over the whole subject, in many minds, as to the condition, and rights of Indians living in the woods.
We have thought it might be useful therefore, to change the scene, and to state a case perfectly parallel, though relating to a different tribe, and a different State, in order to make the matter so plain, that it cannot be misunderstood.
Let us suppose, then that one of the New England tribes of Indians, the Mohegans, for instance, were found on the arrival of the pilgrims, in possession of all the territory now contained in Massachusetts; that they permitted the first settlers to land, and received them as friends;--and that they made new cession of territory, as the settlements were extending. The whites encroached, difficulties arose, and wars succeeded; yet peace was repeatedly made, on equal terms, and by the establishment of a known boundary. This was the progress of things, we will suppose, till the commencement of the revolutionary war, when the Mohegans, having placed themselves under the protection of Great Britain, and being persuaded by agents of the mother-country, took up arms against the colonies.
We will proceed with the supposition, as though it were history, and without further interruption.
In 1777, Massachusetts held a negotiation with the Mohegans, by commissioners with full powers, when a peace was made and bound areas were fixed. Other treaties were made between the State and the tribe to 1783 and in subsequent years. Massachusetts, being a member of the confederation, a treaty was made with the Mohegans by the United States, in 1785, by which peace was established, prisoners were exchanged, reciprocity was observed on other important points, and an implicit guaranty of territory was given. Massachusetts protested against this treaty, on the ground that she alone ought to negotiate with Indians occupying a part of her chartered limits, but not denying the right of the Mohegans to their own country and governments. Congress was not in the least moved from its purpose by this protest; but held that the United States had the sole power, by the Articles of Confederation of making treaties with Indian nations, situated as the Mohegans then were. In 1788, Congress issued a proclamation against intruders with the express object of enforcing the treaty.
After the adoption of the federal constitution; General Washington declared the treaty of 1785 to be in force, and that he should use all the powers intrusted to him by the constitution to have it maintained with good faith. At the moment of making this declaration, he sent a special message to the Senate proposing this question: 'Does the Senate advise and consent solemnly to guaranty to the Mohegans, the lands which they occupy?' To which the Senate (the members from Massachusetts being present) unanimously answer in the affirmative. A treaty was formed in the year 1791, between the United States and the Mohegans, by which the Connecticut River was made the eastern boundary of the Indian country, which then embraced what is now the western part of Massachusetts, the southern part of Vermont, the northwestern corner of Connecticut, and the part of New York which lies east of the Hudson River. In this treaty, 'the United States solemnly guaranty to the Mohegan Nation all their lands not hereby ceded.'--Many stipulation are made, and, among the rest, the Mohegans engage, that they will not form any treaty with a separate State. They grant to the United States the privilege of a road from Albany to Springfield, and permit boats to navigate the Housatonic River. The United States promise to give them implements of husbandry, that they may become herdsmen and cultivators, and with a view to their permanent attachment to their soil. The United States also engage, that, if any citizen of the United States shall go into the Mohegan country ' commit a crime there, or do any injury to a peaceable Indian, such citizen shall be punished by the courts of the United States, in the same manner as if a similar crime had been committed within the jurisdiction of Massachusetts, or within any territorial district of the United States. The Mohegans, on their part, agree to deliver up for punishment any of their people, and any who take refuge in their nation, who have committed trespasses upon neighboring whites; and, in consequence of the various stipulations in their favor, they agree to be under the protection of the United States and of no other sovereign whatever.
This treaty was ratified by the Senate unanimously, no member from Massachusetts, Connecticut, New York, or Vermont making any objection; and Massachusetts never having objected to the guaranty of 1791 down to the present day.
Seven years afterwards, another treaty was made with the Mohegans, negotiated by a eminent citizen of Massachusetts, acting as a commissioner of the United States, which expressly extends the guaranty of the Mohegan country forever.
Massachusetts having long had claims to western lands which the United States would not acknowledge, a compact is formed between that State and the United States, in 1802. By this compact, Massachusetts, cedes to the United States all her claim to the western lands, accepting as an equivalent, a large sum of money and an engagement that the United States would extinguish the Mohegan title as soon as it could be done `peaceably, and on reasonable terms', several clauses in the compact implying that the title was to be extinguished by treaty with the Indians, and that the treaty was to be made between them and the United States, Massachusetts, having no agency in any such transaction.
After this compact, ten treaties were made between the United States and the Mohegans, all with the acquiescence of Massachusetts, and some of them at her solicitation. By these treaties, she acquired lands of the Mohegans, not then territory, so far as Massachusetts is concerned, was reduced to what lies west of the counties of Franklin, Hampshire, and Hampden, where the Mohegan Nation still remains, upon the ground derived from the immemorial occupancy of preceding generations. In one of these treaties, the Mohegans granted to the United States the privilege of a road, which should pass through their country from Rutland, Vermont, to Litchfield, Connecticut. In another it was stipulated, that the agent of the United States, residing among the Indians for their benefit, might cultivate land for a field and garden, so long as he should reside there in that capacity. In the last of these treaties but one, a treaty negotiated by the individual, who is not President of the United States, provision was made for the permanent residence of the Indians upon their hereditary possessions, and all preceding treaties were confirmed; and the very last, negotiated by the individual, who is no Vice-President of the United States, is declared to be formed for the preservation of the Mohegan Nation; provision is made in it for a permanent school fund, to be expended in the country now occupied by that nation; and the Intercourse Law of the United States is permanently pledged for the protection of the Mohegans against the whites.
In the War of 1812, the Mohegans sent a larger proportion of warriors than any State in the Union according to their numbers, volunteering their services under the banners of the United States. They fought by the side, and under the orders of the commander, who is now President of the United States. Some of their bravest and best men fell on the field of battle; and those, who survived, were cheered and applauded as faithful allies, and generous disinterested friends, fully deserving the guaranty, which they had received.
The State of Massachusetts, however, importunately presses the United States to extinguish the Mohegan title. The legislature all the white acknowledges, that treaties must be made by the United States, before the title can be extinguished. The Governor of Massachusetts, in 1825, proclaims treaties with the Mohegans to be the supreme law of the land. The Representatives in Congress from Massachusetts, as late as the spring of 1827, leave upon the records a formal protest against a law, which assumed that a certain treaty with Indians, was void on account of fraud. The reason assigned by these Representatives was, that a treaty was an instrument of so high a character that rights vested immediately on its execution, and it could not be set aside, even by a subsequent treaty, and for manifest corruption.
In the mean time, while these treaties, and laws, for their execution, were carried into effect with the universal acquiescence of the rulers and people of every State in the Union, the Mohegans were making rapid improvements in civilization. The Secretary of War (Mr. Crawford) whom we will suppose to be an eminent citizen of Massachusetts, and afterwards the idol of that State, took the lead in promoting the best interests of the natives. He wrote and official letter to invite the co-operation of benevolent societies with the government in measures for the intellectual and moral improvement of the Indians. From him the first impulse was received toward the support and establishment of schools, by the General Government, for the instruction of Indian children. Various efficient causes of improvement were in operation; and the Mohegans formed a regular republican government, upon the best models.
All these things were perfectly known to the inhabitants of all the northern states. If a gentleman was travelling from Boston to Albany, he knew he was to pass through the Mohegan Nation. He did pass through it. He knew when he crossed the limits. He saw the natives at work on their farms. He lodged at their houses. He visited their schools. He spent the Sabbath with them, and engaged with them in the most solemn ordinances of public worship. He read their newspaper, which was sent weekly into all parts of the United States. They told him what their relations with the United States were, and that they were accurately and minutely described in treaties. The added, that, in the execution of these treaties, white intruders had been repeatedly driven off, by the armed force of the United States.
The people of Albany, of North Hampton, of Hartford, and of Rutland, came into the Mohegan Nation to witness the improvement of the Indian pupils; and the teachers returned these visits. All the people knew what the Mohegan Nation was, and what its rights were, as solemnly guarantied by the United States. Not a State in the Union had its limits more exactly known, or it separate existence more positively guarantied.
But, while things were in this condition, Massachusetts, suddenly resolves in December,1827, that she has waited long enough for the Mohegan lands; that she cannot get them by negotiation, she has a right to take them by force; that she will not resort to violence, however, till other means shall have failed; that the Mohegans never had any right to their country; that they are the tenants at will of Massachusetts; that their lands belong to her; that the King of England gave them to her two hundred years ago; and that she wants the Mohegan lands, and will have them. These things Massachusetts solemnly declares, before the world, in the year 1827, by resolutions adopted in both branches of her legislature; and she directs her governor to send a copy to the President of the United States, which duty was faithfully performed.
The next year, 1828, Massachusetts extends her laws over the Mohegans; and annexes all that part of their territory, which lies with her chartered limits, to the counties of Franklin and Hampshire, and Hampden. She enacts at the same time, that no Mohegan, nor any descendant of a Mohegan, shall be either a party or a witness in a court of justice.
These measures she follows up, in 1829, by enacting, that if any Mohegan chief shall attempt to prevent the people of the tribe from emigrating he shall be liable to imprisonment four years; and if any member of the tribe shall endeavor to prevent any chief from selling the whole Mohegan country, he shall be imprisoned not less than four years, nor more than six years.
When the civilized world began to express astonishment at those remarkable doings; Massachusetts bestirs herself to produce arguments in justification; and her arguments are these.
1. She alleges, that the American aborigines were in a state of nature, when New England was first settled from Europe, and men in a state of nature can neither be entitled to property, nor to the protection of law; from whence she infers, that the Mohegans may justly be driven from their patrimonial inheritance, although they are not in a state of nature, but have lived by her side under the protection of international and municipal law for two hundred years.
2. She alleges that according to Vattel, erratic tribes, savages in the hunter state, may be required to give up a part of their land to their more civilized neighbors for cultivation; therefore the Mohegans, who are not an erratic tribe, and not in the hunter state, but herdsmen and cultivators, may justly be ejected from all their lands, which they have derived from their ancestors, which they have neither forfeited, nor sold, and which have been guarantied to them forever by the United States.
3. She says, that it is an established principle, that barbarians should yield to civilized men; and therefore the Mohegans, who are not barbarians, who have demeaned themselves peaceably towards the United States for the last forty years; who have learned to read and write; who have a printed language of their own, and send forth a newspaper weekly, shall leave their native land and seek a residence elsewhere.
Not appearing to be altogether satisfied with these reasons, Massachusetts says, that she is to be the only judge of her own limits; that she shall defend her exclusive right to her own territory; and that writers of pamphlets, and reviews, had no business to meddle with her affairs; that therefore, she is bound by her assent to the constitution of the United States, which says, that the meaning and effect of treaties and laws are to be decided by the courts of the United States; nor by her own compact of 1802, which admits the Indian title, and prescribes the manner in which it is to be extinguished, if extinguished at all. In short, she declares roundly that she will interpret all her obligations herself, without asking the opinion of any one; or, in other words, that her present inclination is her only rule of duty.