and Indians' Advocate
Wednesday, November 4, 1829
Vol. II, no. 30
Page 1, col. 1b-col. 5a
From the National Intelligencer.
PRESENT CRISIS IN THE CONDITION OF THE AMERICAN INDIANS.- NO. X
There is but a single treaty more in this long chain of negotiations.
It was executed on the 29th of February, 1819, by John C. Calhoun, then Secretary
of War, for the United States, and by twelve Cherokee Commissioners. It
may be called,
THE FOURTH TREATY OF WASHINGTON; OR, THE SIXTEENTH AND LAST NATIONAL COMPACT BETWEEN THE UNITED STATES AND THE CHEROKEES.
The preamble states, that "the greater part of the Cherokee Nation have expressed an earnest desire to remain on this side of the Mississippi," and, that they are desirous "to commence those measures which they deem necessary to the civilization and preservation of their nation:" they therefore offer to cede to the United States a tract of country at least as extensive as the United States will be entitled to according to the provision of the preceding treaty.
Art. 1. The Cherokee Nation ceded to the United States all its lands lying North and East of the following line: [By this boundary considerable tracts of land were ceded, which fell under the jurisdiction of Alabama, Tennessee, and Georgia. There was a reservation of about 100,000 acres, lying without the new boundary, for a school fund for the Cherokees.]
The cession this article to be in full satisfaction for the lands on the Arkansas, given by the United States, in the next preceding treaty.
Art. 2. The United States to pay for improvements on the ceded territory; and to allow a reservation of 640 acres to each head of a family who wishes to remain, and become citizen of the United States.
Art. 3. A reservation of 640 acres to each of 31 persons, mentioned by name, "all of whom are believed to be persons of industry, and capable of managing their property with discretion."
There were also eight other reservations of 640 acres to each of eight other persons designated.
Art. 4. The land reserved for a school fund to be sold, in the
same manner as the public lands of the United States, and the proceeds vested
by the President of the United States, the annual income to be applied "to diffuse
the benefits of education among the Cherokee Nation on this side of the Mississippi."
Art. 5 Boundaries to be run as prescribed in former treaties. Intruders from the white settlements to be removed by the United States, and proceeded against according to a law of Congress, which was enacted March 30, 1802.
Art. 6. Two Thirds of the annuities to the Cherokees on the East, and one-third of those on the West of the Mississippi.
Art. 7. The citizens of the United States not to enter upon the ceded lands, before Jan.1, 1820.
Art. 8. This treaty to be binding when ratified.
The treaty was ratified by President Monroe and the Senate.
The preamble of this last treaty admits that the Cherokees, as a body, wished to remain upon their ancient territory, with a view to their national preservation. The treaty was therefore avowedly made with the same view. This is perfectly manifest from the words of the document; and I feel warranted in saying, that the Cherokee chiefs (who consented to the cession of the first article with great reluctance) were positively and solemnly assured, that the Government of the United States did not intend to ask them to sell anymore land. This is implied, indeed, in the preamble, which, after recognizing the desire of the Cherokees to remain and become civilized, add, in effect, and the cession now made was so extensive, as not to require any future cession.
To about forty individuals specific reservations are made by the third article, on the alleged ground that they were "persons of industry, capable of managing their property with discretion."
A very small portion of the Cherokee population resided upon the land (excluding, also, those who wished to emigrate from the ceded district to the Arkansas) about forty heads of families were selected, ten years ago, as possessing the character above described. It is incontrovertible that the Cherokee Nation has been improving to the present day.
The number of industrious persons has been greatly increased, as could easily be shown by an induction of particulars, if my limits would allow. The words of the treaty are not more plain, therefore, nor its principles more just, than its spirit is humane & benevolent.
The fourth article looks directly at the permanent residence of the Cherokees on the territory of their fathers. The lands reserved for a school fund have not yet been sold; when the treaty was signed, it was supposed they would sell for a great sum of money. Similar lands, not far distant, had been sold by the United States at auction a year or two before, at very great prices. The principal tract reserved lies on the Tennessee, and as was thought, would produce so large a capital, that the interest would afford the means of education to all the children of the Cherokees. What is to be done with this sum? The treaty says, the President of the United States shall vest it as a permanent fund; and that the annual income is to applied "to diffuse the benefits of education among the Cherokee Nation on this side of the Mississippi." Here is a permanent fund for a specific object; and that object implies the permanent existence of the Cherokee Nation Eastward of the Mississippi.
But the provision of the fifth article is more remarkable still. It would seem as if every contrivance was used which ingenuity could devise, for the purpose of binding the faith and constancy of the United States to a just and honorable course with the Cherokees. The integrity of their territory had been guaranteed by treaty. Rigorous laws had been enacted for the punishment of intruders. These laws had been executed. But the time might come when these laws should be repealed; and when Congress should, by a feeble system of legislation, leave the Cherokees defenceless [sic]. In order to guard against this species of bad faith, a stipulation is here inserted, by which a certain law of the United States, so far as it related to the intrusion of whites upon Indian lands, is made a part of the treaty. This law, therefore, as it respects the Cherokees, cannot be repealed by Congress. It is to be considered in just the same light, as if all those parts of it, which related to intruders, had been literally copied into the treaty. Let us then look at some of its provisions.
By the law of March 30, 1802, it is enacted, (section 2) that if any citizen of the U. States shall cross over, or go within, the boundary line, between the United States and the Indians, to hunt, or in any wise destroy the game; or shall drive horses or cattle, to range on any lands allotted or secured by treaty with the United States, to any Indian tribes, he shall forfeit a sum, not exceeding $100, or be imprisoned not exceeding six months.
By section 5th, it is enacted, `that if any citizen shall make a settlement on any lands belonging, or secured, or granted, by treaty with the United States, to any Indian tribe, or shall survey, or attempt to survey, such lands, or designate any of the boundaries by marking trees or otherwise, such offender shall forfeit a sum not exceeding $1,000, and suffer imprisonment not exceeding twelve months. In the same section, the President is armed with full power to take such measures, and to employ such military force, as he shall judge necessary to remove from Indian lands any person who should "attempt to make settlement thereon."
There are other provisions in the act, all tending to the protection
of the Indians, and to the preservation of their territory inviolate.
This general law is now in force, in regard to all the Indians, whose lands
are secured to them by treaty; and in regard to the Cherokees, let me say again,
Congress cannot repeal it; for it is incorporated into a solemn national compact,
which cannot be altered, or annulled without the consent of both parties.
Within a few months past, a train of surveyors professing to act under the authority of Georgia, have made an irruption into the Cherokee Nation, to the great annoyance & alarm of the peaceable inhabitants. These agents of Georgia have not only attempted to survey, but have actually surveyed, what they call an old Creek boundary, which they have doubtless designated by marking trees and otherwise. Thus they have done the very thing which is forbidden by the 5th section above quoted, under a penalty of $1,000 and twelve months' imprisonment. Even if the people of Georgia were right, as to the Creek boundary, they are not the proper persons to ascertain the fact. Several treaties between the United States and the Cherokees provide, that boundaries shall be ascertained by Commissioners appointed by the United States, accompanied by Commissioners appointed by the Cherokee Nation. Can any good reason be assigned, then, why the President should not direct prosecution to be commenced against these offenders, who have trampled on a law, which is of vital importance to sustain the plighted faith of the nation?
It is said that the United States can make no treaty with Indians living within the limits of a State; that is, within the limits of what appears by the map, to be one of the United States. I beg leave to make a distinction between a State, and the map of a State; not having yet seen it proved, that the engraver of a map has the power of disinheriting a whole people, and delivering their property into the hands of others. What did the men who formed the Federal Constitution, think of the extent of the treaty making power? This is, I think a pertinent question, and admits of a decisive answer. In the first law of Congress, on the subject of Intercourse with the Indians, which was enacted under our present form of government, the fourth section reads as follows:
"That no sale of lands made by any Indians, or any nation or tribe of Indians, within the United States, shall be valid to any person or persons, or to any State whether having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.- [Judge Story's edition of the United States Laws, p. 109.]
This act was approved, July 22, 1790; only sixteen days before the execution of the Creek treaty, in the City of New York; which was described in my fourth number. The leading members of Congress had been the leading members of the convention, that formed the Federal Constitution. Their exposition of that instrument will not be controverted by any considerate writer, or speaker; and their decision, in the section just quoted, is as positive and peremptory, as can well be imagined.- The same provision was continued in subsequent laws and is found, in the law of March 30, 1802, in these words:
And be it further enacted, That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation, or tribe of Indians, within the bounds of the United States shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution. And it shall be a misdemeanor, in any person, not employed under the authority of the United States, to negotiate such treaty or convention, directly or indirectly, to treat with any such Indian nation, or tribe of Indians, for the title or purchase of any lands by them held or claimed, punishable by fine, not exceeding one thousand dollars, and imprisonment, not exceeding twelve months."
Then follows a proviso, that an agent from a State may be present, and propose terms, when Commissioners of the United States are treating with the Indians.
In accordance with the express provisions of these national laws, it has been the universal practice to obtain cessions of Indian lands through the medium of treaties, made under the authority of the United States.- No fewer than nine of these treaties have been duly formed and ratified, in regard to small reservations of Indian territory, in the single State of New York. That great and powerful State has never yet complained that its rights "as a sovereign and independent State," are in any way endangered or abridged; by a faithful adherence to the letter and spirit of the Federal Constitution.
Thus, Messrs. Editors, I have gone through the long list of treaties which our country has made with the Cherokees; and which have received the highest sanction of the Legislative and Executive branches of our Government; and which, no doubt, will receive the sanction of the Judiciary, whenever regularly brought before it. The Judges of the Supreme Court of the United States long since declared, incidentally, that the United States are bound by treaties to the Indians. Mr. Justice Johnson said, nineteen years ago, (6 Cranch, p. 147) "innumerable treaties formed with them,[the Indians] acknowledge them to be an independent people; and the uniform practice of acknowledging their right of soil, and restraining all persons, from encroaching on their territory, makes it unnecessary to insist upon their right of soil." Chief Justice Marshall said, that the Indian title "is certainly to be respected by all courts, until it be legitimately extinguished." This is enough for the perfect defence of the Cherokees, till they voluntarily surrender their country; this being the only way in which their title can be legitimately extinguished, so long as treaties are the supreme law of the land.