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CHESI4IKEE PHMIX, MD INDIANS’ ADVOCATE.
PRINTED UNDER THE PATRONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO l'HE CAUSE OF 1NDIANS.«*E« IIOUDINOTT, EDITOR.
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NEW BOKOVA,
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SEPTEMBER 30,1829.
PRINTEp WIIKLY BV
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'AGENTS FOR THE CHEROKEE
PHOENIX.
The following persons are authorized to
Receive subscriptions and paymeuts for the
Cherokee Phoenix.
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taw Nation.
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~ ISPAtMS. ~
From tlje National Intelligencer.
PRESENT CRISIS IN THE CONDITION OF
THE AMERICAN INDIANS.—NO. III.
The title of the Treaty to which I
referred in iny last number is in these
Words:
“Articles concluded at Hopewell,
.on the Kcowee, between Benjamin
.^Hawkins. Andrew Pickens, Joseph
' Sjfju tin, and Lachlan M’lntosh, coip-
£ms$ioijers plenipotentiary of the U.
J^atcsfof America, of (fed one part
Auid the Head Men and Warriors of
CherokceV, : .°f the other.”
The preface lo the articles is thus
.expressed: .
. ‘The Commissioners , Flenipoten
' tiary of the United States in Congress
assembled, give peace to all the Clfe
. rokees, and receive them into the fa
vor and protection of t|ic United States
of America, on the following Condi
tions.” .. .
Before I proceed to makh an aU
stract of tjie articles, it ik proper to
say, that Iti regard to this and all sub
sequent. Treaties, I shall be as brief
a# appears to be consistent with put
ting the reader in full possession of the
case. The more material parts of
treaties lshall cite literally; and these
yvilj be distinguished by double invert
ed commas, Other parts will be a-
bridged;, but where the principal
wojpds .of any abridgment aye taken
from (lie treaties, such passages will
be nmrkodjby single, inverted com-
luos. Tho^less material parts will bo
^Hprea?Da as ^HieflV*.as^po^sible in my
owff language; but in all these cases
| pledtfc myself to the strictest fideli
ty. At least the subject of faery arti-
cit shall be mentioned, that the read
er qiay judge of the genera! ospeot of
the whole, ai well as of the meaning
of the most important parts. The
Treaty of Hopewell, then, reads as
follows:
“Art. 1. The Head R|en and
Warriors of all the Cberokees shall
restore all the prisoners, citizens of
the United States, or subjects of their
allies, to their entire liberty: they
shall also restore all the negroes, and
all other property taken during the
late war, from the citizens, to stfch
person, .and at such time and place,
as the Gona’rqissioners shall appoint.
“Art. 2. The Commissioners of
the United States in Congress assem
bled, shall restore all tiie prisoners
taken from the Indians during the late
war, to the Head Men and • Warriors
of the Cberokees, as early as is prac
ticable. .
VArt. 3. The said Inditiiis, for
themselves, and . their respective
Tribes and Tbwns, do acknowledge
the Cherokecs to be under the. pro
tection of the United States of Ame
rica, mid of no other sovereign what
soever.
Art. 4. The boundary allotted to
the Cherokecs fbr their hunting
grounds, between the said Indians and
the citizens of the United States,
within the limits of the United States
of America, is, and shall be the fol
lowing:” This boundary defines the
Northern and Eastern limits of (he
Cherokee country.
“Art. 5. If any citizen of th« U-
nited States, or other person, not be
ing an Indian, shall attempt to settle
on any of the laqds Westward and
Southward of the, said boundary,
which are hereby allotted to the In
dians for their hunting grounds, or hav
ing already settled and will not ft*
move fromthe same within six months
after the ratification of this Treaty,
such person shall forfeit the protec
tion of the United States, and the In
dians may punish him, or not, as they
please.” Then follows a proviso, as
to settlers “between the Fork of
French Broad and Holstdri,” whose
case is to be referred to Congress.
“Art. C. If any Indian, or Indians,
or persons residing among them, or
who shall take refuge in their Nation,
shall commit a robbery, or murder,
or other capital crime, on any citizen
of the United States, or pfej-son under
their protection, the Nation, or the
Tribe, to which such offender or of
fenders may belong, shall be bound to
deliver him or them up, to be punish
ed according to the ordinances of the
United States;” 'provided iliat the
punishment shall not be greater, than
if the crime had been committed by a
citizen on a citizen.’
“Art. 7. If any citizen of the U-
nited States, or person under their
protection shall commit a robbery or
murder, or other capital crime, on
any Tfidiau,” he shall be punished in
the same manner as if 'the crime had
been committed on a citizeft;’ and the
punishment shall be in thb presence of
some of the Cberokees, who shall
have due notice of (lie time and place.
“Art. 8. No punishment of the
innocent for the guilty, on either side,
“except where there is a manifest
violation of this Treaty; and then it
shall bfc preceded first by it demand tjf
justice; and.if refused, then by adecld-
ratipn of hostilities.”
“Art. f). For the benefit and coidr
fort of the Indians, ami for (lie pre
vention of injuries or oppressions on
the part of the citizens or Indians, tjie
United States in Congress assembled
shall have the sole and exclusive right
of regulating the trade with the Indi
ans, and managing; all their affair,*. in
such inanuenas they think proper.
“Art. 10. Until the # pleasure of
. ..n
“Art. I®. That the Indians may
have full confidence in the justice oi
the United States, respecting their
interests, they shall have a. right to
send a dephty of their choice, when
ever they think fit, to Congress.
“Art. 13. The hatchet shall be
foVpver buried, and peace given by
the United States, and friendship re
established between the said States
on the oiib part, atjdaft the Cherokees
on the other, shall be universal; and
the contracting parties shall use their
utmost endeavors to maintain (he
peace giveti as aforesaid, and friend
ship re-established;”
These articles were sigued by the
four Commissioners of the United
States, and by thirty-seven Head Men
and Warriors of the Cherokecs, in
tlie presence of William Blount, af
terwards Governor pf Teijnessce, and
eight oilier Witnesses; In the formul
ary which precedes .tile signatures,
tm;..articles are called a “Definitive
Treaty.
It may be well to look, for a few
moments, at some of the ftatures of
this instrument, though it is by no
means so important, as twefor more of
the treaties which have since been
negotiated by the same parties. A-
rnong the documents of. Congress,
published during the last session, is a
letter from the lion. llughL. White,
ity of traders
Art. 11. The said Indians shall
g;ive ndtice” of hny designs, “formed
in any neighboring tribe, or by any
person whomsoever^ against the peace,
trade, or int&esls of the United
States.’*
now Senator in Congress, lo Mr. John
Ross, at present the, Chief man of the
Cherokee nation, in which the writer
argues at some length: that the treaty
of Hopewell is not jiotv in force, on
account of its having been abrogated
by a subsequent war, and its not be
ing expressly recognized in ally sub
sequent treaty. Whether (fie con
clusion of Judge White is correct, or
not, has little bearing on the present
investigation. If the treaty be not
now in farce, it was ih force once;
find its meaning may be worth consid
ering.
This is the first treaty made by the
United States with either of the South
westei-n tribes, or nations. The
State of Georgia had, previously to
the revolutionary war, entered iiito a
compact with the Cherokecs, of
which notice will be taken, at the
proper time.. After the peace of
1783, and before the adoption of the
Federal Constitution, the Congress
made treaties with the Indians, in pre
cisely the same manuer as with Eu
ropean nations. If the power to do’
this wa9 doubted, or denied, the doubt
or denial, has never come to rny
knowledge. The treaty of Hopewell
was negotiated by Commissioners, all
of whoni, If 1 mistake not, resided at
the South; and I have never heard
that any remonstrance was offered by
either of the States in the neighbor
hood of the Chcrokees, on the ground
that the Old Congress Dad no power to
agree upon a line of debarkation with
the Indians. A line was fixed, in the
4th article;* securing to the Indians
the undisturbed possession of a tcf fi-
tory, which appeared on the map to
be a part of Virginia, the two Cnf bli-
nas and Georgia; the States of Ken
tucky aiid Tennessee not having then
been formed. If L tliis treaty now
stobd alone, and the relations of the
parties had not been changed by sub
sequent events, no white man could
have '■attempted to Settle on any df the
lands within the Cherokee boundary,’
even down to the present day, howev
er he might have been sustained in
his attempts by the constituted author
ities of any or all of the States situat-*
ed in the neighborhood of the Chero-
kees. Against, ; such an attempt, the
'Indians woulddqiye been protected by
the faith of the Confederated Repub
lic. This remark is made simply for
the sake of drawing the ^Mention of
the reader to the inviolability of the
Indian territory, as Strongly implied
in the fifth article.
From the phraseology adopted in
two,or three passages of the trdaty,
the conclusion seems to be tfrawn by
the present Secretary of War, that
treaties with the Cberokees are not
binding upon the whites; at least not
to the extent of their literal and
proper meaning. The argument
stands in this form. The Cherokees
fought on the side of the British, in
the war of independence. The Brit
ish were beaten; and therefore the
Cberokees were a conquered people
To a conquered people the United ;
States gave ptame; and therefore the
United States arc not bound by the
ve/y articled which they dictated—
They allotted a boundary to the Cher
okecs; and therefore tiie United
Slates are not under obligation to res
pect the boundary, which they them
selves allotted. To refute such con
clusions, established by such a process
of reasoning, is unnecessary. The
very statement of the argument is c-
nou e l i- t * •
It IS true, that the Commissioners
of the United States, in several trea
ties mado about the same time, ex
press themselves rather haughtily,
when they declare th^t they give peace
to the Indians. , Tiie fact is .well
known, however, that (he \i hi tea were
much more desirous of peace than
the Cherokecs were. The inhabit
ants of our frontier settlements were
in constant dread of incursions from
the natives of tire forest. Impover
ished as Out* country was by a seven
years war, it would have been impos
sible to have scoured the vast wilder
ness from the settled country to the
Mississippi. Any force which could
then have been sent, would have fared
worse than the army of St. Clair did,
in a far less dangerous field, nine years
afterwords. The Cli&rokees could
not have set up for nice verbal critics
of the English language, as they did
not understand a word of it. It is
questfohable whether one Indian inter
preter in ten would make qny differ
enc.e between give peace, and make
peace, or agree to it peace. The Chero-
kees doubtless understood, that the
United States were desirous that there
should be on end of fighting; but it is
incredible that they should have
thought there was linking, under the
phrase of giving peace, any such mys
terious implication of superiority on
the part of the whites, as should ul
timately exonerate the superior from
all obligation to keep faith with bis
inferior. Least of all could they have
supposed, that there was a latent
power in this phrase, which should
destroy the validity of all future com
pacts between the same parties, in
not one of wfiich the insidious phrase
is to be found.
The phrase to give peace was a fa
vorite one with the Romans, and was
doubtless copied from them. 1 think
Bonaparte used it also on some occa
sions. But neither the Romans, nor
Bond parti;, so far as I knpw, ever so
berly contended that a tibaty was to
be interpreted, otherwise than accord
ing lo the obvious and proper meaning
of the words, merely because one of
the parties assumed rather a haughty
aif t , in some few instances of the
phraseology.
As to the word allot, it is said to
have been coinmonly used in the
Southern States as syuonymous with
fix, or establish. To say that a boun
dary was allotted to the Cberokees,
was no more than to say thaj( a boun
dary was established, or agreed upon;
for the boundary is not said to have
been allotted by the Upited States. It
may have been, indeed it must have
been, as the whole .scope of the trea
ty shows, allotted btj the consent of both
parlies.
WILLIAM PENN.
WO' 26.
-ate-: ■ .
NO. IV. . ,
If our statesmen are about to in
terpret treaties, on the principle of
favoring the party which assumed a
superiority, they must takD care lest
there should be some very (unexpect
ed con&quences.
In a treaty formed between the
United States and the Cttlckasaws, in
the year 1801, and ratified by Presi
dent Jeffereon and tho Senate, the firsjt
article commence* ilms; ‘•’ihe. Min
go, principal men, and Warriors of tjie
Chickasaw Nation of Indiaqs.give have
and permission to the President of the
.United States of America, (<> Jay out^
open, and mak$ a convenient wagon
road through tlicir land." After stat
ing that the road “shall be a highway
for the citizens of the United Stages
and the Chickasaws,” and that the.
Chiekasaws ‘shall appoint two dis
creet men as guides,’ who shall he paiff
by the United States for their servft
ces, the article closes thul: “Provid
ed always, That the necessary ferries
over the water courses, crossed oy
the saidj oad, shall be held and deemetf
to be the property of the Chickasaw Na
tion-”
. Tfie second article makes a pecu
niary compensation to the Chickasaw#
for “their respectful and friendly
tention to the President of the United*
States of America, anil to the request
made to them in his r hhme, to permit the
opening of the road.”
Who is the superior.h$re, ? Trans
late these passages faithfully, find send,
(ocm to the Emperor of China, and l$f
him lay the matter beforghis coun^fej,
lors, who never heard 6f the tJnjtjjjj
States. They will soy, in a moment;
tliat.yie Mingo of the Chickasaw! is
a monarch, who jm # his great bonded
scension, lias graid'^i/ (he humble re
quest of'the President, on the conili*
tion that the petitioner shall"Sake!,
pecuniary compensation, and pay tri
bute, under the nathe of ferriage.
the Chickasaws, as often as any of
the President’s People pass through
the territory of the King of the Chicks
asaws.
According, to the recent code of
national moraUty, wliat is to be the
operation of this Chickasaw treaty ?
Most undoubtedly, in the first place;
the Chickasaws may close up the roadj
(he stipulations of the treaty to the
.contrary notivkhstariding. Indecfif
they must have exercised great for
bearance already, as they have jter-
m it fed the road to be open twenty-seo/
en years, solely out of regard to this,
treaty; just as Georgia lias widffel
twenty-seven years before .taking pos
session of the Cherokee territory, out
of complaisance to the engagements of
the United States, which tire in fact
of nq validity,,._j
In the second place, iionc ot (he
treaties made subsequently by the
Chickasaws are binding upon them;.
and therefore they may reclaim all
the lands which they have. iccdi?d jtft
the United States. Of course the im
habitants of West Tennessee, who
now live on fertile lands, which were
ceded to the whites by the Chicka*
saws, must immediately remove, if
the Chickasaws require it. The rea
son is plain. Np superior can be
bound to an inferior; but, that the
Chickasaws are the superiors, is evi
dent, a6 the Secretary of War says in
the other case, because “the emphatt
ic language” of the treaty “cannot be
mistaken.”
But it may be said that there are.
other indications in the treaty of
Hopewell, (fiat the United States as
sumed a superiority, beside the
phraseology, in the instances above
cited. The question is not, be it ,re#
mumbered,whether the United States,
at the time of the treat? of Hopewell,
were fl more, powerful nation than
the Cherokecs; but whether, being A
more powerful nation they are on that
account exempted from the obligation
of treaties.
The Cherokecs did, undoubtedly
place themselves under the protection
'of the King of Grpa.t, Britain; but bis
power had failed them. It w'at natu
ral that they should accept proffer*
of protection from some other quar
ter. This is not a new thing in the
world. From the time of Abraham
to the present day, there have beei
alliances, offensive and Dt^pnsive, con
federacies, and smaller States rely
ing for protection Upon the plighted
faith of larger ones. But what it im
plied in the very idea of protection?*