Cherokee Phoenix

From the N. Y. Whig

Published July, 23, 1831

Page 2 Column 2b

From the N. Y. Whig.


We are not sure that the Indian Q uestion, as it is called, has not suffered from over much debate. Remote historical considerations and the discussion of abstract principles seem to have obscured, rather than cleared up the main practical points actually at issue. The question seems to us to be one of positive compact, and nothing else. Have contracts been made with the Cherokees by the United States? are they constitutional and binding? if binding, what parties are concluded by them? and who is to decide whether they are binding or not? These, as it seems to us, are the questions to be considered, and by the answers to these, the conduct of the federal government and that of Georgia, is to be judged.

That the contracts or treaties have been made, nobody denies. If they are constitutional and binding, the conclude Georgia as truly as they do the United States, for every state is really a party to every treaty as is the whole Union, because each and every state has, in the most solemn and deliberate manner, by adopting the Constitution of the United States, conferred on the national government the authority to make treaties, which they have, each and all in the same instrument, agreed should be part of the supreme law of the land. After a treaty has been made pursuant to the Constitution and in accordance with its forms, it binds the government of each state as positively as it does that of the United States. In other words, the Constitution of the United States, is a part of the constitution of each state, which all state officers, from governor to constable, are bound by oath to support, as actually as are the officers of the United States government. If Georgia, therefore, is really a party to the treaties with the Cherokees, (and if she is not, the constitution has no meaning) her late legislation is not merely oppressive, it is a positive breach of public faith, not as direct as that of the United States in not executing the treaties, but as real.- Georgia seems to have regarded herself, all along, as not a party to any sense to the Indian treaties and as not legally estopped by them; and seems also to have regarded the United States government, as a foreign and hostile government, in whose arrangements she had no direct interest, and might disregard, or circumvent at pleasure. Suppose a man, having under his own hand and seal, and with the sanction of an oath, constituted an agent to make contracts for him, should afterwards undertake to break these contracts and say he never made them; what would be thought of him?

But if such are the legal relations of Georgia to this grave question, what are those of the United States? The treaty-making branch of the government has made treaties with the Cherokees; Congress has passed laws to regulate intercourse with them, pursuant to those treaties, and the President has taken a solemn oath to execute both the treaties and the laws. The President has

not executed these treaties and laws, but has permitted them to be violated. In doing this he has done more-he has, on his own motion, without consulting any other constitutional branch of the government, yielded a portion of national jurisdiction, uniformly exercised by all his predecessors, and the whole government, and sanctioned by the several states in the demand of Georgia. Is the power to annul treaties, any more than the power to make them vested in the President; and is he competent to abrogate laws, any more than he is to enact them?

On which side soever the question may finally be determined by the competent tribunal, the President has no more authority, by the constitution, to decide it, than has a private citizen; and he has no more option, in regard to the execution of a duly enacted law, than a sheriff has in reference to the execution of a writ.

The only occasion on which the President, as such, has anything to say about the principles of a law is when a bill is sent to him from Congress for his signature. If he thinks it unconstitutional, or even inexpedient,(though the latter some doubt) he has the constitutional right to refuse his signature. If, however, the two Houses again pass the bill by majorities of two thirds in each, then the bill becomes a law, in spite of his objections and he is just as completely bound by his oath and his duty to execute it, as he is any other law. All further demur on his part is at a legal end; and the moment he refuses to execute the statute, sets it aside, or treats it as null, he assumes the judicial function, and abandons the executive.

Does the Constitution give him this judicial power; or does it intend that he shall have two votes-two chances to interpose his objections to the doings of Congress?