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OPINION ON THE BOUNDARY BETWEEN THE CHEROKEES AND CREEKS IN GEORGIA
BY WILLIAM WIRT, ESQ.
The Cherokee and Creek Indians were coterminous tribes in the south and a part of their respective territories lay within the chartered limits of Georgia. Some doubt having been thrown over one of their common boundaries by the fact of their having both made cessions to the United States, including a slip of the same lands, they agreed in the year 1821, to mark this line, which was accordingly done. The line thus marked is a right line from the Ten Islands on the river Coosa, eastward to the Buzzard Roost on the Chattahoochy, the Cherokees owning the land to the north of that line, and the Creeks to the south. This line has been recognized by the United States as the boundary between these two tribes; and the recognition is contained in the treaty between the United States and the Creek Nation in 1826. The line is called for in the second article of that treaty, and the cession is bounded by it for thirty miles; but the Creeks being disposed to cede all their lands, within the chartered limits of Georgia, in supplement is added to the treaty for this purpose, by which this additional cession is bounded for forty-five miles by this line thus marked between the Creeks and the Cherokees in 1821. This cession by the Creeks is for avowed purpose of ceding all the lands which they possessed in the State of Georgia; thus it is admitted by the Creeks and by the United States that the Creeks owned no lands in Georgia to the north of this line, and that, consequently, that line is the true boundary between the Creeks and the Cherokees.
The State of Georgia, however, to whose benefit this cession [See fourth page] inures, denies that this is the boundary, and she has of her own authority, run another line which she calls the true boundary, and which lies sixty miles to the north of the line established by the Creeks and the Cherokees. By this process she takes from the Cherokees a territory sixty miles in breadth on the Chattahoochy, and stretching from that river to the Coosa, with different degrees of width.
As the Cherokees refused to submit to this amendment on their
territory, the subject came before the President of the United States, who has caused a third line to be run, different from both the former, and not corresponding with any treaty which has heretofore been made, but which he has declared officially, shall be the line between the lands ceded by the Creeks to the United States and the Cherokees in 1826. The line thus established by the President's orders, leaves the Chattahoochy at the Shallow Ford, about thirty miles to the north of the Buzzard Roost, the point agreed upon by the Cherokees and Creeks, as one of the termini of their line, and runs between this line and that which is claimed by Georgia. Thus the President's line takes thirty miles of their territory from the Cherokees at that point if the line between them and Creeks in 1821 was a line authorized by law.
1. Had these coterminous tribes of Indians a right to mark the boundary between themselves, by their own consent, and is not the boundary so marked the true boundary between them?
2. If it required the sanction of the United States to make that boundary valid, was not this sanction sufficiently given by the treaty of 1826?
3. Has the President of the United States any constitutional and legal power to run and establish the line which he has declared to be the line between the Creeks and the Cherokees?
1. The right of coterminous tribes to settle their own disputed boundaries, by their own consent, was admitted by the executive of the United States, at a time when the highest office of this nation was filled by one of the most eminent lawyers and statesmen that our country has ever known.--I mean Mr. Jefferson. In the treaty of 1806 between the United States and the Cherokee Nation of Indians. I find the following article:
"Art. 3. It is, also, agreed, on the part of the United States, that the Government, thereof, will use its influence and best endeavors to prevail on the Chickasaw Nation of Indians to agree to the following boundary between that nation and the Cherokees, to the southward of the Tennessee River viz: beginning at the mouth of Caney Creek, near the lower part of the Muscle Shoals, and to run up the said creek to its head, and in a direct line from thence to the Flat Stone or Rock, the old corner boundary."
"But it is understood by the contracting parties that the United States do not engage to have the aforesaid line or boundary establish, but only to endeavor to prevail on the Chickasaw Nation to consent to such a lie as the boundary between the two nations."
It is needless to dilate on this article. It is perfectly clear that Mr. Jefferson considered the Indians as the only competent authority to settle their own disputed boundaries, that it was to be done by their consent alone, and that the United States had no right to interfere in the matter, except in the character of mediators.
Who, indeed, can be so well qualified to settle such a question as the parties themselves? It depends on facts and traditions of which they are the best and the peculiar repositories, and therefore interest natural to all men, civilized or savage, will make them vigilant and astute to take advantage of every circumstance that operates in their favor; so that when a boundary is once fixed by them, by consent, it may well be considered as near the truth as human sagacity, sharpened by interest, can approach.
With regard to their right to do this: the possessory right of the land is in them exclusively,and it is a perpetual right of possession,in them and their heirs forever. It would be singular if they had not the right to settle the boundary of their respective possessions, amicably, between themselves. If they cannot do it, who can? The United States we have seen disclaimed the power in 1806; and under the constitutional laws and treaties of the United States the several States have no right to interfere with them.
It is objected that this settlement of boundaries may involve a cession of lands by the one with theother, and that they have no right to make any cession except to the United States. among the multitude of answers, to which this objection is exposed, I will merely suggest the following without dilating on them; promising that, even if the objection were valid in other respects, before the boundary could be questioned, it must be shown judicially, not that it was, but that it does involve a cession.
1. No enlightened tribunal would ever consider an amicable and bone fide settlement of their boundaries among the Indian tribes for the sake of peace among themselves as a cession of their lands, within the meaning of the principle to which the objection alludes.
2. The settlement of their boundary having been prior to a cession, by either, or any of the lands effected by that boundary, and it being perfectly uncertain which of the tribes would make the first cession, it must be a matter of indifference to the holder of the ultimate domain where the boundary would run.
3. The State of Georgia claims the possession of these lands under a cession by the Creek Nation. She can take only what was ceded; and the cession stopped at this boundary for which it called: expressly and upon which it ran for forty-five miles no more land was paid for under this cession, than what is comprised in this boundary.
4. Suppose the settlement of this boundary to be subject to the objection that because the Creeks and Cherokees held only the right of occupancy, they cannot make a cession except under the authority of the United States.- This brings us to consider the next question.
II. I cannot imagine any more high and solemn sanction to this boundary that that which is given to it by the treaty of 1826, made by the President, ratified by the Senate of the United States. It is very clear that Mr. Jefferson would have considered such a boundary as firmly established, when made by the tribes, themselves, under the mediation of the President; here is a solemn treaty, made by the President and Senate of the United States accepting a cession from the Creeks based on this boundary, and acknowledging that it comprised all the lands which the Creeks possessed in Georgia.
III. On this question I can only say that I am not informed of anything in
the Constitution, laws or treaties of the United States which confers the power
which has been exercised. It is certainly not among the specific powers enumerated
in the Constitution. The Treaty of 1826 directs that the line which it designates
shall be run under the superintendence of commissioners to be appointed by the
Cherokees. The 20th section of the intercourse act of 1802 authorizes the President
to run and mark the boundary lines, which have been established by treaty. But
it is said that the line run and marked in this case does not follow the designatio
of any treaty; certainly not of that of 1826. The act done seems to me to be
without authority- and, therefore, void.
Baltimore, June 24, 1830.
Baltimore, June 25th, 1830
Since the above opinion was written my attention has been called to the treaty of the 15th November 1827 between the Creeks and the United States. It appears by the supplementary article to the Treaty of 1826, that the impression of the parties was that a line setting out from the Chattahoochie fifty miles below the Buzzard Roost, and to run as to strike the line marked by the Creeks and Cherokees forty-five miles west of the Buzzard Roost, thence along the line so marked to the Buzzard Roost, and thence down the Chattahoochie to the place of beginning would embrace all the land of the Creeks in Georgia west of the Chattahoochie, which it was declared to be the intention of the Creeks to cede by that supplementary article. It was uncertain whether the line between Alabama and Georgia did not cross that marked boundary at a distance short of forty-five miles from the Buzzard Roost-in which case the first line designated by the supplementary article would have run into Alabama which was not the intention of the parties. That first line, therefore was directed to stop at the point at which the line of Alabama might cross the marked boundary. If it should cross it within the forty -five miles. It was afterwards ascertained however, that point of intersection lay still farther west, and that it would require an extension of the lines designated by the treaty of 1826 to comprehend all the lands of the Creeks in Georgia, west of Chattahoochie. These facts are recited in the preamble to the Treaty of 1827; and then it is added in the preamble that "the President of the United States having urged the Creek Nation further to extend the limits as defined in the treaty aforesaid(that of 1826) and the chiefs and head men of the Creek Nation being desirous of complying with the wish of the President of the United States,THEREFORE, they, the chiefs and head men aforesaid, agree to cede and they do hereby cede to the U. States all the remaining land now owned or claimed by the Creek Nation, nor heretofore ceded, and which an actual survey may be found to lie within the chartered limits of the State of Georgia,"
I do not perceive that there is anything in this treaty to change the foregoing
opinion. It does not propose to effect the boundary marked between the Creeks
and the Cherokees. It proposes only such an extension of the lines defined by
the Treaty of 1826 as to enhance the Creek lands. But that treaty defines no
line, to the north of the line marked by the Creeks and the Cherokees; all the
new lines defined by it lie below the marked line, and the north boundary coincides
with it. I consider the Treaty of 1827 construed as it should be, altogether,
rather as a re-affirmance of the marked boundary. It is true it cedes all the
Creek lands in Georgia; but that a cession, is, in express terms to be effected
by an extension of the lines defined in the Treaty of 1826- and the only lines
defined in that treaty are the line from the Chattahoochie to the marked boundary
then along the marked boundary to the Buzzard Roost, and down the Chattahoochie
to the beginning; and these are in my opinion the lines which the President
is authorized to run under the 20th section of the intercourse law of 1802.