Cherokee Phoenix

Five Column Format

Published December, 26, 1830

Page 4 Column 1a

Five Column Format


To the editors of the National Intelligencer


GENTLEMEN: Your readers need not be informed that the Indian Question, as it is familiarly called, has been deeply interesting to the American public for more than a year, and that it was particularly so during the whole of the last session of Congress. This subject does not directly affect the private concerns of our citizens, nor does it bear immediately on the foreign relations of the country, nor ought it to be entangled with the wishes and designs, the hopes and fears, of political intriguers or partisan editors. No other subject, so far removed as this is from the ordinary causes of excited feeling, has taken so firm a hold of the public mind and the public conscience, since the United States became a nation. This general interest can be accounted for in no other way than by supposing that a large portion of our inhabitants, including many of the most intelligent, virtuous, and public spirited in the community are seriously apprehensive that justice is to be trampled on, humanity outraged, and the national character deeply stained, by the treatment which the defenseless tribes upon our borders are to receive at our hands.

The Indians are now, if compared with ourselves, a feeble race of men. They are far removed from the populous part of our country. They have but a scanty means of access to the minds and hearts of our people. Ignorance of their condition casts an obscurity over their rights and claims. They have no patronage to bestow, no votes to give or withhold, no resources adequate to even a moderate and stinted defence of their righteous cause. Their opponents can wield a great patronage, have many votes to give, and hold great political power at their disposal; and all the influence thence resulting is exerted to stifle inquiry, to misrepresent the character and claims of the Indians, and to make their cause appear despicable and hopeless.

Yet, though their cause labors under all these disadvantages, the people of the United States generally, so far as correctly informed in regard to facts, are on the side of the Indians. The cry of the Indians has been heard: their claims are thoroughly understood by many; and all fairminded honorable men, by whom these claims are understood, are extremely desirous that the Indians should receive that protection, which our nation has solemnly, and many times, covenanted to afford.

Another session of Congress is approaching; and it seems proper to enquire, what is the present state of the Indian Question? and what are the people of the United States bound to do, in regard to it?

I propose, Messrs. Editors, to answer these two inquiries, in two essays; and as but a single number will be devoted to each, I respectfully solicit the attention of yourselves and your readers to a discussion of so moderate a length, on a subject, which, however it may be disguised for the moment, will at last be universally acknowledged to be one of momentous import.

To ascertain what is the state of the Indian Question? it will be necessary to bear in mind the following particulars.

The present Chief Magistrate of the United States, soon after entering upon the duties of his office, gave the Cherokees and the other southwestern tribes to understand, that they must submit to the laws of the States in their neighborhood. While he professed a willingness to extend his protection to these tribes, in some undefined manner, and to some uncertain extent, he explicitly and repeatedly declared, that he could do nothing, which should interfere with State Laws, or should imply that the separate States have not the absolute and uncontrolled power of legislating over Indian tribes, residing on their original territory, if that territory happens to fall within the chartered limits of any State. Of course, the President must have assumed the power of suspending the law of Congress, regulating intercourse with the Indian tribes; a law the principal provisions of which have been in force since the year 1790, and which now stands on the national statute book unrepealed. If the right of the States to legislate for the Indians be admitted, it is absurd for the General Government to talk of protecting them; in any respect whatever.

The President has not only supposed himself invested the power of suspending or repealing laws, but has, in the case of the Cherokees, suspended the intercourse law, which had been made perpetual for their benefit by an express treaty stipulation. He has also assumed the power of vacating treaties, on the ground that all his predecessors in office, and ever Senate of the United States, had transcended their constitutional authority.

The fact that the President has theoretically and practically assumed the power of suspending or repealing a law of Congress, which had been enforced by every one of his predecessors, and the power of vacating treaties, which had been uniformly held sacred among them, is one of the most remarkable things which have taken place since the origin of our Government. However very remarkable it is, may be seen by any one who reflects, that the Constitution has given the President no power to pronounce an existing law unconstitutional, much less to repeal or suspend a law. He does not embody in himself all the legislative and judicial functions of the Government.

The interpretation of laws, and the power of deciding as to their constitutionality, belong to the judiciary, by which branch of the Government these powers have exclusively been exercised. Even in hereditary monarchies, wherever there is any thing like a limited Government, the King cannot abrogate, alter, or suspend a law. The King of England, for instance, has no power of this sort. The representatives of the French people inserted in the recent charter a declaration, that the King should never suspend the operation of a law and this was one of the first, and one of the most important additions which they made to the old charter.

Such being the known opinions and conduct of the President, the Indian Bill passed at the close of the last session of Congress. The act would be perfectly harmless, were the executive of it confided to a Chief Magistrate, who entertained the views of General Washington and Jefferson, in relation to this whole subject. It recognizes the national character of the Indian tribes, and expressly guards against the violation of treaties. Yet, both its friends, and its opposers know very well, that the Indian tribes were denationalized by those State laws, with which the President had said he could not interfere, and that, under the operation of these State laws, every treaty, though made for the very purpose of protecting the Indians, would become a dead letter. I speak of the friends of the bill generally. There many have been a few who voted for it, in the belief that it would be impossible for the President to disregard the plainest stipulations of treaties, under the auspices of an act of Congress, which expressly guarded their sanctity.

The effects of this act of Congress have been precisely such as its opposers predicted they would be. The Indians have all been told, that the opinions of the President, as they had been previously stated and explained, are approved by Congress, and that now there is certainly no alternative for these tribes, but a removal beyond the Mississippi, or subjection to the laws of the States.

Attempts to negotiate with the Southwestern tribes have been renewed under the auspices of the Indian Bill. The Cherokees and Creeks have refused to treat. The Chickasaws have agreed to remove, provided a country can be found, which shall be satisfactory to them, a condition which they do not believe it possible for the United States to comply with. The Choctaws have recently signed a treaty, under the very urgent influence of the Secretary of War, with the law of Congress, as explained by him, and the laws of the State of Mississippi, and all the unknown power of State legislation, suspended over them; the whole forming a system of duress, which the Choctaws could not withstand, and which is equally unjust to them, and dishonorable to the country.

When the Indian Bill had passed, the Cherokee deputies, then at Washington, employed legal counsel. Now, for the first time since this controversy arose, they availed themselves of professional aid. Mr. Wirt, long and advantageously known to the American public as an eminent jurist and a powerful advocate, was engaged by them to defend their cause, and to take proper measures for bringing it before the Supreme Court of the United States.

The announcement of this advance in the controversy was received with tokens of high gratification. The sad countenances of the Cherokees were universally lighted up. All friends of the Indians, and all who love to see justice administered with an equal hand to the weak and the strong. To the Supreme Court of the Constitution has assigned the duty of deciding questions, which arise in regard to the constitutionality, as well as the meaning and effect, of laws enacted by Congress, and by the Legislatures of the several States. If the Indian Question can be fairly brought before this tribunal, and deliberately argued and adjudicated there, the public will undoubtedly be satisfied with the decision. If, however, there should be unavoidable delay in the obtaining judgment of the Court, so that the Cherokees cannot soon avail themselves of that legal protection, to which they believe themselves entitled, and which has been solemnly guarantied to them by the sovereign authority of the Nation, it will be matter of deep sorrow and regret to them, and may prove fatal to their cause.

Soon after Mr. Wirt was employed as counsel for the Cherokees, he prepared for their use and guidance a written opinion, embracing all the material points of difference between them and the State of Georgia. In this opinion, which was drawn up with great ability and candor, and sustained by unanswerable arguments, the following positions are established, viz:

1. That the Cherokees are a sovereign nation.

2. That the territory of the Cherokees is not within the jurisdiction of the State of Georgia, but within the sole and exclusive jurisdiction of the Cherokee Nation.

3. That, consequently, the State of Georgia, has no right to extend her laws over that territory.

4. That the law of Georgia, which subjects the Cherokees to the jurisdiction of that State, is unconstitutional and void.

5. That improvements, for which individuals among the Cherokees have received a compensation from the United States, in consideration of their emigrating to the country on the Arkansas, do not pass to the United States; much less does the soil, on which these improvements are found, pass to the United States for the use of Georgia; but these improvements and the soil belong to the Cherokee Nation. And.

6. That the President of the United States has no constitutional power to fix the boundary between the Cherokee Nation and the State of Georgia.

In these positions, many of the most distinguished lawyers in the United States have fully and deliberately concurred. Indeed, it may be doubted, whether a lawyer of my reputation can be found who will seriously undertake to controvert them. I do not learn that any answer has been attempted.

If any confidence can be given to the opinion of Mr. Wirt, thus expressed and published in the view of the whole civilized world, an opinion, which, as Mr. Wirt very well knew, must inevitably either elevate or depress his own character, as a professional adviser, and a man of intelligence and integrity; an opinion, formed under circumstances of peculiar responsibility to his clients, whose dearest interest are involved in the issue: if any confidence is due to the opinions of many other eminent jurists in our land -- men of experience and sagacity, neither seeking nor holding public offices, not entangled with political parties, but looking at the subject only as connected with the permanent interest of the country; if any credit can be yielded to the solemn asservations of some of the ablest and most respected members of both houses of Congress; or to reasonings, which have been pronounced unanswerable by men of great intelligence in Europe and America; or to the declarations of dispassionate and patriotic citizens, many of whom regard the matter in the single light of common sense and common honesty; if these things, or any of them, are worthy of consideration, the people of the United States are soon to decide a most extraordinary question. It is -- Shall our nation violate its faith? The question is no less than this. It cannot be made less. No sophistry can disguise it. No art can conceal it. No party clamors can drown the voice of reason and conscience, which incessantly cries, Beware of National perjury.

The question then for our young and boasting Republic to settle, is, shall we deliberately make up our minds to forswear ourselves? Shall we calmly, and coolly, and after many months for consideration and reflection, proclaim to the world, in the face of Heaven, that we deem very lightly of our faith; and that we can break treaties by scores and by hundreds, without a pang, and without a blush? Shall we, the People of the United States, who formed all our constitutions of Government; who do act not forget that we govern ourselves; and who expect our will, and not the will of a few privileged men, to be obeyed; shall we perpetrate an act, which combines all the baseness and guilt of the meanest fraud, the most barefaced falsehood, and the most deliberate perjury? Shall we perpetuate such an act, while, in all our intercourse with foreign Nations, we are talking of justice, and honor, and integrity? and are demanding in a high tone of morality, as if conscious of rectitude, that all our rights should be admitted, and our claims, should be regarded as unquestionable? Shall we perpetuate such an act, by encroaching upon the rights of the weak and defenseless, merely because they are weak, and we are strong? Shall we do this with reference to the descendants of men, who listened to the persuasions and entreaties our fathers, who consented to a peace at the earnest solicitations of Washington and other worthies and heroes of the Revolution? who received from Washington, as Chief Magistrate of the newly formed Union, the very first pledges of the pure and uncontaminated faith of the rising Republic? and who accepted oiur solemn guaranty, as the great equivalent for large and rich domains, which they relinquished to our expanding population? After expressing, for forty years, our determination to abide by these very engagements; after reaffirming these engagements by the mouths, and under the seals of all the venerable and honored men who we had selected as most worthy to hold the highest offices in the State; shall we suddenly have the hardihood, the audacity, the impudence, to absolve ourselves from all the obligations, which rest with such accumulated weight upon us? Was the man of probity and honor ever transformed, all at once, into a knave, a swindler, a case-hardened villain, taking no pains to hide his villainy? Was it ever heard of, that a chaste matron became, all at once, regardless of common decency? The Romans had a maxim, Nemo repent fit turissimus. And shall we, in this early age, of our growing Nation, after exhibiting to the world most illustrious examples of public virtue, suddenly examples of public virtue, suddenly cast away, as a worn-out Government, all regard to our national character, all respect for the opinions of mankind, all respect for ourselves, all consideration of our permanent interests, and all fear of God the Avenger of the oppressed?

Is it possible that the People of the United States should hesitate on this question? No; they would not, if they saw that this was the question distinctly proposed to them, that they must answer it; and must be held responsible to the world for answer. The danger is not, that a majority of the people will do wrong, with a full understanding of the case; but that apathy will prevail; and the question will be decided the wrong way by interested voices; and thus the character of the country will be lost; before the country is aware of it.

The alarm should be sounded by all who can write, and all who can speak; an alarm more earnest and thrilling than would be required to guard against the approach of an invading army, the breaking forth of pestilence, the conflagration of fifty cities, or the loss of half the property in the Nation. If property were only destroyed, after the lapse of a few years the loss would not be known, and posterity would neither see nor feel it. But the loss of character is irreparable. Who would not rather have a son or a brother deprived of his last farthing, with his reputation uninjured, than see him placed in the pillory for manifest fraud and wilful perjury, though he might console himself, in his infamy, with the wealth of both the Indies? The ordinary calamities of life are soon past and forgotten; but the deep wound of a ruined character -- the ruined character of a nation -- after ages are gone, is just beginning to show how disgusting and intolerable the gangrene is.

If this Nation, the People of the United States, shall commit, or, which is the same thing, allow their public agents to commit an act of flagitious and enormous wickedness, in a perfectly plain case and without any excuse or palliation, the disregard of public morals and public decency will be more shameless, the injury done to weak supplicating tribes more wanton, the disgrace brought upon the cause of free government more deep and more extensively pernicious, and the guilt incurred more frightful and appalling, than it is in the power of language adequately to describe. History furnishes no parallel case of palpable injustice and cruelty, committed, or allowed, by the mass of the inhabitants of a great country, after ample time for deliberation.

A thousand voices ask, What can be done to avert the evil? Is the case without remedy? Can we find no place for repentance, though we seek it carefully with tears?

These questions have already been answered, in effect, by the public doings of various, assemblies of our fellow citizens, in different parts of the country; but it may be a matter of convenience to have the answers embodied in a single paper. This I shall attempt in my remaining number.