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tional agreement entered into in 1
1821, cannot be sustained, the ques- I
tinn arises, wliat is the true designa
tion of the original line which at pre
sent scperat.es the Cherekees and
Creeks.
To determine this, ns before sta
ted, a commissioner lias proceeded to
tlie disputed territory, and there col
lected all the information that was to
he obtained. It has resulted in this,
that neither the boundary claimed,
bv the one or the other has been a
greed upon; hut another and a differ
ent one, such as will appear to you
by the enclosed map. The testimo
ny has been procured with care and
Caption, and the President, on a re
view of it is satisfied to recognize this
dividing ridge as the correct line of
seperation You will cause to he
communicated, therefore, the deter
initiation of the President upon this
subject, that our Indian brothers who
are residing South of this ridge may
- retire and settle to the north of it,
and within their own undisputed ter
ritorial limits. Orders will he issu
ed relative to this subject, to the offi
cer commanding the military detach
ment of Port Mitchell.
The object of the Government is
to persuade, not coerce their Indian
friends to a removal from the lands
of their fathers. Beyond all doubt
they cannot be peaceable and happy
where they are; yet still will they lie
protected to tlio oxtent of that right
• aad justice and the powers possesed
require; beyond this the President
has neither the inclination nor the
authority to go. It is idle to talk of
’ rights which do not belong to them,
and of protection which cannot be
“* to disclose the facts as they exist,
. that all in interest may look to them
and he warned, and by timely pre
caution escape those evils of which
experience has already afforded
abundant indication there is no a-
Voiding, situated where they are.
It is directed that the Indians, if
there beany who reside to the south
of the ridge running west from shal
low ford, as is demonstrated on the
inclosed map on the Chattalioochie,
remove and settle themselves north
of that line.
All white intruders, those who are
in the nation without authority, or
who have not Indian families, to be
jQfllm’itli removed from the nation.
‘Those however who are sotfledupon
lands from which the CJhcrokces, in
persuance of existing treaties, have
removed, and the value of which the
‘Government ure liable to pay, are
pot to he included in the designation
of intruders; those you will permit
to remain until further orders shall
VHue to you.
’ The President adopts this course
. . upon full reflection, anil from a de
sire to maintain in proper execution
existing treaties and laws. The offi
cer commanding will assist in the ex
ecution of this order, by causing the
huts and fences of all intruders to
be destroyed; and in arresting and
handing over to the civil authority
Chose wiio refuse to depart.
You will proceed co give public no
tice of what is here stated, that the
Intruders may remove quietly from
thp places they occupy, and thereby
prevent any resort to military inter
ference. •
You will furnish immediately to
the commanding officer the names of
(hose persons and their residences,
who, under the instructions herein
contained, arc authorised to remain,
, all others will bo removed. Accor
dingly, you are immediately to as
certain what persons are accepted
in this order, and extend to them a
written permission to remain, depen
dent always upon their deporting
themselves correctly.
JOHN 11. EATON.
To Col. Hugh Montgomery,
■ Cherokee Agent, Calhoun, Tennessee.
Opinion of the Attorney General as
to the right acquired to the soil un
;.. der existing treaties with the Che
rokevs. Received at the War De
partment the 29 th March, 1830.
Office of Hit Attorney General U. S.
10/A March, 1830.
Silt: The question which you pro
pose, relates to the condition of
those lands within the Cherokee
hunting grounds, the improvements
on which, having been paid for by
the United States, the lands them
selves have been abandoned by the
individual occupants, who have em
igrated to the Westward. The in
quiry renders necessary ail examina
tion of those doctrines which relate
. to the title of this Indian tribe to the
land which it occupies, and of our re
lations to them, as these may huve
been affected by the treaties or com
pacts which have been entered into
with tlietn.
In the very elaborate opinion de
livered by Chief Justice Marshall, in
the case of Johnson vs. Mclntosh, re
affirming the doctrine asserted in
Fletcher and Peck, and speaking of
the lands in the occupancy of the In
dian tribes, it is declared, that, by
the treaty between Great Britain and
the United States, which concluded
the war of our Revolution, the pow
ers of Government, and the rights to
soil which had pieviously been in
Great Britain, passed definitively to
these States; that the United States,
or the several States, have a clear
title to all lands within the boundary
linos described in the treaty, subject,
only to the Indian right of occupancy.
Such, it is said, also is the doctrine
which has been held by the various
European nations, who acquired ter
ritory on this continent, and who
have all asserted their right to the
soil, by making grants of lands which
were yet in the possession of Indian
tribes. Such, I have to remark, will
moreover he found to he the spirit of
the several compacts entered into,
with this particular tribe, if these are
carefully considered, and general ex
pressions are interpreted as they
should he, by a reference to princi
ples vvhicli had been already settled
in previous stipulations with them,
or which necessarily grew out of the
relations betwcou a civilized commu
nity, and the savage tribes which
roved within the limits of its juris
diction and sovereignty.
In i l.v. fl> ipoaty ivit li I his .tribe,
that concluded at Hopewell, they are
manifestly considered as a conquered
people, and the terms of that instru
ment clearly indicate the recognition
of the principle adverted to lie the
Supreme Court, in the case of John
son and Mclntosh, that a conqueror
prescribes the limits of the right of
conquest; and that the limitatious
which humanity, fortifying itself by
usage, imposes upon civilized na
tions, cannot be applied and enforc
ed in relation to a savage tribe.
The instrument commences by this
emphatic declaration: the commis
sioners plenipotentiary of the United
States, &.C. &c. give peace to nil the
0 mm
States of America, on the following
conditions.
The tribe was no longer in that
state, in which, as an independent
and unconqucrcd nation, it could
stipulate for itself, that tlicrb should
lie peace between the United States
and its people; hut only in a condi
tion to receive this as a boon result
ing from the more grace of the con
queror, It was a boon which was
moreover granted on itcb conditions,
us could only have been imposed on
a conquered and an uncivilized-peo
ple. They were required to restore
all prisoners and property taken by
them during the war, and to do ho
mage to the United States, by ac
knowledging themselves under the
protection of this Government, and
by expressly abjuring all other pro
tection. When they had thus hum
bled themselves before their conquer
or, and it became necessary to as
sign to them a country, in which they
might dwell, this was not done by
marking out to them the limits of a
domain, which should be appropriat
ed to them iu fee, or by any other
determinate title, and which, sepa
rated from the United States, should
he circumscribed by limits which
each party should he bound to re
spect. On the contrary, the terms
of the treaty shew, that, like the gift
of peace, it was an net of mere grace
on the part of the Uuited States, by
which a base and determinable inter
est was conceded, in the lands which
were assigned to them. The 4th
article of this instrument declures,
that the boundary allotted to the
Cherokces for their hunting grounds
between the said Indians and the U
nited States, within the limits of the
United Stales oj America, is, and
shall he, &,c. fcc. The territory
thus described, was then allotted by
the will of'lie conqueror—it was so
ullottcd as mere hunting grounds, o
ver which the tribe was free to rove
iupursuit of their game, without con
ferring on them any permanent In
tel est in the soil itself, the fee in
which remained in the State within
whose jurisdictional limits it was; and
these hunting grounds were acknowl
edged to be within th esovereign limitsi
of the United Slates.
Such were the terms which the U
ntted States, in the exercise of the
rights of conquest, and of those ac
quired under the treaty of 1783, with
Great Britain, imposed upon the
Cherokces; and it was upon these
conditions that this tribe agreed to
accept nnd retain possession of the
lands, which were thus assigned or
allotted to them. The principle
thus decisively settled by the treaty
of Hopewell, is fundamental. It con
stitutes the basis of all subsequent
stipulations, and furnishes the key,
by which they are to he interpreted.
When, therefore, in the subsequent
treaty of Ilolslon, the United States
solemnly guaranty to the Cherokces,
thelands not hereby ceiled, the stipu
lation must be- understood with re
ference to tire interest, which, by the
treaty of Hopewell, they had in these
lands; which it has been seen was
such, and no- more, ns an allotment
of them for hunting grounds, could
create. Inthe treaty afterwards en
tered into ntTcllico, the continuing
force and. obligation of this treaty is
recognised : ; for the second article
expressly stipulates, that the treaties
subsisting between the contracting
parties, are acknowledged to he of
( full and operating force; together
with the construction and usage un
der their respective articles, and so
to continue; and that treaty is de
clared to he additiomil to, and to
form a part of, the treaties already
subsisting between the United States
and the Cherokces. A like recogni
tion of the (Continued force of former
treaties, is. also found in the second
treat)’ concluded at Tellico, on the
26th October, .1805. Except then
as they were modified by the stipula
tions of succeeding treaties, these
earlier compacts continue in forte
at the present day. We may pass,
therefore to.those treaties, which re
late to the emigration of the Chero
kees to the lands West of the Mis
sissippi, vvhicli give rise to your in
quiry.
As eaily as in the Fall of the year
1803, two deputations, tho one from
the tipper, the other from the lower
Cherokee towns, presented them
selves at Washington, the first to
declare to the President their desire
to engage iu the pursuits of agricul
ture and civilized fife, in the country
they then occupied; the second, to
tation from the upper towns, request
ed from him the establishment of a
division line, between the upper and
lower towns, for the purpose, by thus
contracting their society within nar
row limits, of beginning the estab
lishment of fixed laws and a regular
government. Those from the lower
towns alleged the scarcity of game
wliero they then lived, nnd made
known their wish to remove beyond
the Mississippi river, on some vacant
lands of the-United States. In the
early part of the succeeding year,
the President replied to these appli
cations, expressing- the willingness
of the" Government, as far as could
be reasonably asked, to satisfy the
wishes of both; assuring to those
who should remain, its patronage,
aid, and good neighborhood ; and
giving to those who wished to re
move, permission to examine the
country on the Arkansas and White
rivers, with a promise to exchange
it for a just portion of that which
they should leave. These transac
tions arc in the same spirit which
dictated the treatios to vvhicli we
have referred. They are applicati
ons of a dependent tribe, to a nation
whose protection they invoked, and
whose right to regulate their con
cerns they recognised. They are
registered in the compact of 1817,
which was entered into to give effect
to them.
Among other provisions of that in
strument, it stipulated for the pay
ment by the U. States “to those emi
grants, whose improvements should
add real value to their lands, a full
valuation for the same, to he ascer
tained by a Commissioner to be ap
pointed by the President of the Unit
ed States.” For all improvements
which added real value to the lands
celled to the United States by that
treaty, they agreed to pay in like
manner, “or. in lieu thereof, to give
in exchange improvements which the
emigrants may leave, and for which
they arc to receive pay.” This com
pact moreover provided “that all
those improvements left by the emi
grants within the hounds of the Che
rokee nation, East of the Mississippi
river, which added real value to the
laud#* aud for which the United
States shall give a consideration,
and not so exchanged, shall be rent
ed to the Indians, &c. be. c. until sur
rendered to the nation or by the na
tion.” It was also agreed, “that the
said Cherokee nation shall not be
called upon for any part of the con
sideration paid for said improve
ments at any future period.”
The United States, by force of this
treaty, nnd in considciation of the
paymentE made in pursuance of it,
became land holders in the Cherokee
nation, within the limits of those
boundaries which were yet reserved
to them as hunting grounds. They
were authorized by this agreement
to exchange the lands, the improve
ments on which they had paid for to
t.hc emigrants, and to make leases,
through the Agent, of such as they
did not exchange. These exchang
es, and leases gave to the parties ex
changing, and to the lessees the right
of occupancy; nnd that was the ut
most to which the Indian title a
mounted. Did not the United States
succeed to this title of occupancy ?
They had the right to designate who
should occupy the lands on vvhicli the
improvements were, for which they
had paid to the emigrants, either by
exchanging them with those who a
bandoned improved lands within the
limits of the territory, ceded to them
by that treaty, or by leasing them
through the Agent, to such persons
as they might think proper.
For whom then did tho U. States
acquire this right, whatever it was,
to lands within the limits of a parti
cular State ? If it be answered for
themselves, the inquiry is, by what
authority could they acquire a title
to such lands, without the consent
of the State within whose limits they
are? and again, were they not ex
pressly bound by the articles of ces
sion between the United States nnd
Georgia, of the 24th April, 1802, to
extinguish the Indian title ll fo.r the
use of Georgia ?” If extinguished,
did not the “right, .whatever it was,
which was acquired, instantly enure
to tho benefit of'Georgia, as well
because the United States had no
right, without the consent of Geor
gia, to acquire domain within the
limits of that State, as because she
had solemnly stipulated, and for a
valuable consideration paid by Geor
gia, that she would acquire this title
for the use of that State? The Su
jireme Court tiave decided, in the
case of Johnson vs. Mclntosh, as we
have seen, that the title to nil the
lands within their boundaries, not
withstanding the occupancy of the
Indians, was in the United States,
or in the several States. In Fletch
er and Peck, they have declared,
with regard to lands tying within the
limits of the State of Georgia, and
occupied by the Indians, that the
tiltimnte fee was in that State. The
proprietor of the ultimata fee in the
soil, must, it would seem, have the
right to remove the incumbrances
on that title; that is, in such a case
as this, the right of pre-emption of
the Indian title of occupancy. Whe
ther this right is to he exercised in
dependently, or under the supervi
sion of the Fedexal Government, is
a question which would depend on
the terms and validity of what is
commonly called the Indian inter
course act. The practice has been
variant, but in the most recent case
of which I am advised, thutofacon
veyanco by treaty to certain persons
who had acquired by purchaso the
ultimate fee, which the State of N.
York originally held in certain lands
in the occupancy of the Senaca tribe
in that State, which treaty was held
in the presence of a Commissioner of
the United States, and submitted by
the President to the Senate* in the
usual form, for their adv ice and con
sent; as to its ratification, that bo
dy refused its consent, and in an
explanatory resolution, disclaimed
“the necessity of an interference by
the Senate with the subject-matter.”
It would soem, then, that, if the
Indian title to thelands, the improve
ments on which were paid for by the
United States, was extinguished by
the treaty of 1817, nnd the acts done
in pursuance of that treaty, that the
rights resulting to the United States
must have been acquired for, and
must have enured to, the benefit of
Georgia. Was the Indian title thus
extinguished ? We must keep in
mind the nature of that title ; that.it
was a l ight of occupancy merely, to
he exercised according to the usa
ges of the tribe. Then we are to
consider, that, -by the terms of that
treaty, and the payment of the valu
ation money stipulated for the ira--
provements, the United States ad*
quired tho right to designate the oc
cupants of those lands; to exercise
the power of exchanging and leas
ing them; and that they were thus
withdrawn from the dominion of the
tribe. Were these rights, thus ac
quired by the United States, not
manifestly inconsistent with the con*
tinned exercise by tho Indians,—of
their original right of occupancy ?
Quoad these lands, was not that
right necessarily extinguished and
gouc ? •.•.•. V.
By the fifth article of the treaty of
1819, between the same parties, it
is stipulated that the leases made in.
pursuance of the preceding treaty,
should be void, and the U. States
agree to remove intruders on the
lands reserved for the Cherokees;
but this stipulation, it is believed,
did not affect the rights acquired liy
tli United States by that treaty, nor
is it considered that the term intru
der* could be applicable to tho less
ees of the United States, if nny such
there were, who had entered by vir
tue of leases made in pursuance of
that treaty, so long as those leases
continued in force. It was not, l
think, intended by States
to relinquish the rights which they
had acquired, and paid for, under
the treaty of 1817, and which, by
force of the articles of cession with
Georgia, if for no other cause, enu
red to.the benefit of that State.
I pass then to the treaty of 1828,
concluded with the Cherokces West
of the Mississippi, ih which it is stip
ulated, that, to every Cherokee yet
wjthin the limits of the States, who
may emigrate therefrom, and join
his brethren West of the Mississippi,
the United States “will make “a just
compensation for the property he
may abandon, to be assessed ’by
persons to be appointed by the Pre
sident of the United States.” The
term “property which he may aban
don,” seems to me to relate to-hi
fixed property —that which he corikl
not take with him; in a word, if be
land and improvements which *he
had occupied. On payment for these
the United States wduTd, I think,
acquire rights which would he incon
sistent with the continuance of tho
right of occupancy therefore exist
ing in the tribe; and whatever right
was thus acquired by the U. States,
utouU, in tho form* of OTticicß
of cession before referred to, enure
to the benefit of Georgia. The
principle which is embraced in The
first of these propositions, is recog
nized by the treaty of 1817; and,al
though the claims acquired under
that treaty were adjusted and settled
by the compact of 1817, yet the Uni
ted States were, I apprehend, free
to apply the same principle to future
acquisitions, mado with the assent
of the, particular occupants. To
have relinquished the right so to ap
ply it, would have been to abandon
the policy by which, both before and
since, they bave'endeavoured to pro
mote the emigration of- .the tribes
dwelling within that State; of wbicU
abandonment the result would be,
that when even a majority, of any
tribe had been gradually withdrawn,
and had received from the U. States
compensation for their respective
claims, .the remnant, however small,
would extend their title of occupan
cy over all the lands lying within tho
limits originally allotted to the whole
tribe. Such, at least since the year
1808, seems not to have been the
understanding, either of this Gov
ernment, or of the particular tribe
whose rights are involved in this in
quiry.
I am, respectfully,
Sir, your obed’t serv't.
MACPHERSON BERRIEN,
lion. John H. Eaton,
Department of War.
To the Editors of the National Intelligencer
Sacket’s Harbor, April 5,1830.
Gentlemen:
In your paper of 25th March, there
is a statement fallen from the Mon
treal Gazette, in which it is asserted
that twenty-five of our soldiers liflA'o
deserted from this post, in a fortnight;
and that a party, consisting of ii ser
geant and twelve men, had gone a
cross, having forced their command
ing officer to accompany them.
Wliat the object of the Montreal!
editor or his informant may be, ju
making this statement, I know not.
I must however, contradict it asgrosg
falsehood. 1 ■;
Your obedient servant,
ALEX. CUMMINGS.’