Cherokee Phoenix

From the New York Advertiser

Published January, 14, 1832

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From the New York Advertiser

The Secretary of War, in the course of his remarks upon the subject of the Indians, among much other matter relating to these people and the policy which he thinks the national government ought to pursue towards them, when speaking of their removal beyond the Mississippi, recommends the adoption of the following measure.

'A solemn declaration, similar to that already inserted in some of the treaties, that the country assigned to the Indians shall be theirs as long as they or their descendants may occupy it, and a corresponding determination that their settlements shall not spread over it; and every effort should be used to satisfy the Indians of our sincerity and of their security. Without this indispensable preliminary, and without full confidence on their part in our intentions, and in our abilities to give these effect, their change of position would bring no change of circumstances.

Now the Indians might possibly be induced to listen to this proposition, if they were not aware that General Jackson and many other individuals who follow in his train, openly and avowedly declare that the treaties made between our government and the Indian tribes, are not binding on the government, and that they are treated by the present chief magistrate of the Union as mere nullities. In such a state of things, what confidence can the Indians place in such a declaration. They must consider it nothing less than mockery, calculated only to delude them into the plan of removing from their present homes, that the states adjoining them may seize their possessions and property, leaving them exposed to another system of injustice and oppression from white men, whenever their lands beyond the Mississippi shall tempt the cupidity of some new state of Georgia in the western world.- What possible protection can they expect from such treatment, beyond that which they justly considered themselves as having a right to claim from the government at the present time? If the treaties that have been made with them are unconstitutional and void, the treaty which shall be made, for the purpose of introducing into it such a 'solemn declaration' as that mentioned by the Secretary of War will be equally so.

Among the difficulties which, in the opinion of the Secretary of War, lie in the way of the Indians in attempting to establish their pretensions, is that of 'the opinion of the Executive.' The opinion of the Executive as manifested on this subject, is certainly an embarrassing circumstance to them. The present Executive, unquestionably the least enlightened and intelligent of all the persons who have held the office of President, and far the most self-willed and obstinate, is the first chief magistrate who has discovered that treaties with Indians are not obligatory upon the nation, and that he is not bound by his oath of office to see them executed. In other words, he is the first President of the United States, who ever claimed the right of exercising a dispensing power over the laws which he has solemnly sworn to execute. Hence, as long as he holds the reigns of the government, and adopts such a latitudinarian construction of his prerogatives, the Indians may be embarrassed. It is to be presumed, however, that his reign must eventually come to an end-if not after four years, at most at the close of eight; for his age, if not his disposition, will have a tendency to produce that result. It is hardly to be expected that another just such character will occupy the station he now holds; and therefore, under a successor, the Indians may stand a better chance for justice.

The Secretary of War, is said to be a good classical writer, but we cannot admire or approve the looseness of his opinions respecting constitutional authority, or the reasoning by which his sentiments are supported. The following is an extract from his report.

'The right to extend their laws over all persons living within their boundaries has been claimed, and exercised by many of the states.- The executive of the United States has on full consideration decided there is no power in that department to interpose any obstacle to the assumption of this authority.' As upon this co-ordinate branch of the government devolves the execution of the laws and particularly many of the most important provisions in the various acts regulating intercourse with the Indians, it is difficult to conceive how these provisions can be enforced after the President has determined they have been abrogated by the state of things inconsistent with their obligations. How persecutions can be conducted, trespassers removed by military power and other acts performed, which require the co-operation of the Executive, either in their initiation or progress.

We have already alluded to Gen. Jackson's assuming the power of dispensing with the force and obligations of the laws of the nation. This passage furnished a practical example of his notions on this subject. The Constitution of the United States declares, that all treaties made under the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby.' It cannot be pretended that treaties with the Indian tribes are not made under the authority of the United States, they are regularly negotiated by commissioners appointed for that purpose and the treaties when completed, are uniformly submitted by the Executive to the Senate, and by them approved and ratified, and by him signed. These various formalities being all attended to, it would seem to follow as a necessary consequence, that they must become the supreme law of the land, which the judges are bound to obey. The President, before he enters upon the duties of his office, takes a solemn oath that he will preserve, protect, and defend, the Constitution of the United States. We have already shown what the Constitution is, as it regards the power of making treaties. It further provides that 'he shall take care that the laws be faithfully executed.' In his official oath he says, that he 'will faithfully execute the office of President of the United States.' That office requires him faithfully to execute the laws of the nation. The question then occurs from what source does he derive his disposing power?

The Secretary of War says, that he Executive has, upon full consideration, decided that thee is no power in that department to interpose any obstacle to the assumption of the authority by individual States, to extend their laws over the Indians within their boundaries. But from whence does he derive the power, with or with 'full consideration,' to decide a point of this sort? The Constitution makes it his duty to execute not to set aside the laws. If he believes an act of Congress to be unconstitutional, he has the right to return it to the House for reconsideration; but if both houses, by the requisite majorities, decide against him on that point, the act becomes a law, not withstanding his doubts or scruples; and being a law, he is bound by his oath, and by the provision of the Constitution to see it executed; and if he refused he is liable to impeachment, and removal from office. The President has no constitutional power to declare a law of the nation whether it be in the form of treaty, or in that of a statute, unconstitutional and void. This is the proper province of the Supreme Court, and every act of Congress which is clothed with the usual formalities of legislation, is as obligatory upon him, as upon any other individual in the community.

It is a high-handed assumption of power in the Chief Executive Magistrate of the United States to dispense with the laws. No English Monarch, since James II has dared to exercise such a power; and he was as much indebted to his rashness and folly in regard to it, as to any other single cause, for the loss of his throne.