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to lurd l.ioor, is (he pcsi ttWwy for tee
term of foui years.
By overruling ihis plea, the Court deci
ded dial that matter it cottlkined was,not
<i bar to the action. Tli» plea, therefore,
must be examined for the purpose of He-
terminiim whether it makes a case which
brines the party within the provisions of
the S23iIt sections of ibe“ Act to establish
dm judicial courts of the United Slides.”
The plan avers that tho rosideuce,
charged in the indictment, was under the
nethority of the President of die United wor rights tu the coimtrydUeovefod wnich
wide ocean, sras inhabited by a distinct
people, divided into separate »itions, in
dependent of each other'and of the rest
of the Worty'having instltutinos of their
own, aed governing themselves by their
owu lows. It is difficulr to comprehend
tliu proposition, that the iuhabiuuits tfei
ther quarter of the globe could Have right
ful Original claims of dominion over the
inhabitants of the other, or over the linds
they occupied; or that the discover) of
either by the other should give the discov
Starts, turd withtho "permission and ap
proval of the Cherokee nation. That
the treaties subsisting between the United
States and tho Cherokees, acknowledge
their right as a sovereign nation to govern
themselves and all persons who have set
tled within their territory, free front any
right'of legislative interference by the sev
eral States composing the United Slates
of America. That the act under which
the proseentiun wus instituted is repugnnnt
to the said treaties, and is, therefore, un
constitutional and void. That lliu said
nci is, ulso, unconstitutional; because it
intorlcras with, and attempts to regulate
and con;rol, the intercourse with the Cher,
okee Nation, which belongs, exclusively
to Congress; and because, also, it is re
pugnant to the statute of the United States
entitled “ An act to regulate trade and in
tercourse with tho In.iiuu tribes, and to
preserve peace on the frontiers.”
Let the averments of this plea bo com
puted with the 25:li suction of the judicial
'Act.
That section enumerates the cases in
which thb final judgement or docree of a
'’State Court may be revised lu the Su
preme Coon of the United States. Those
are, “where is drawn in question the va
lidity of n ueaty, or stntute of, or on au
thority exercised under the United States,
mid'tho dectsiun is against their validity;
or where is drawn in question the validi
ty of a siatuto of,-or on authority exercised
under, any State, on tho ground of their
losing 'repugnant to the Constitution, trea
ties, nr laws of the United States, and die
decision is ill favor of such their, validity;
or where is drawn iu question the Construc
tion 'Of any clauso of the Constitution,
Or Of a treaty, or statute of, or commission
held under, the United States, and the do-
cision !S against tho title, right, privilege,
or exemption, specially sot up or claimed
by "either party, undor sncii clause of the
said Constitution, Irouty, siatuto, or com
mission.”
Tho indictment and ploa,. in this case,
draw in question, we think, tho validity of
the treaties made by the Uni’od States
wilb tho Chernkco Indians. If not so,
their construction is certainly drawn-in
question, and the decision lias been, if not
ngainkltheir validity— 1 “ against the right,
privilege, or exemption, specially out up
atid claimed under them.” They also
draw into question the validity of a siatuto
of ilia State of Georgia, “ on tbd ground
of its being repugnant 10 the Constiiuliou,
treaties, and laws of tile United States,
end the decision is in favor of its validity.”
It is, thea, we think, too clear for con
troversy, that the act of Congress, by
which this Court is constituted, ha* given
it the power, and,of course, imposed on it
the duty, of exercising jurisdiction in this
case. This duty, liowe’vor unpleasant,
cannot be avoided. Those who Ail the
judicial department have uo discretion in
selecting the subjects tu be brought be
fore them. We must examine the de
fence set up in this plea. We Must In
quire and decide whether the act-of the
Legislature of Georgia, under which the
pUiniiB in error has been prosecuted and
condemaed.be consistent with, or repng-
nimt to the Constitution, laws, aud trea
ties, of the United States.
Ji bus been said at the bar, that the
acts of the Legislature of Georgia seise on
lha whole Cherokee country, parrel it
gut omong tho neighbouring counties ol
(he State, extend her code over the whole
country, abol'sh its institutions and its
laws, and annihilate its political-existence.
if this be tlie general effect of the sys
tem, let us inquire into the effect of the
particular siatuto and section on which
tbn indictment is founded.
.ill onsets, (lint “ all white persons resi
sting within (lie limits ol tho Clturokno
fl.nioii on the first day of March next, or
any lime thereafter, without a license
or permit from his Excolleucy the Gov
otnor, or frees such agent as Ins Excellen
cy the Governor shall authorise to grant
such pertpit or license, and who shall not
have taken the omUi> hereinafter required,
shall bo guilty of a high atiiueuioanor, and,
upon conviction ibereot, shall be punished
by confinement to the peuilunliary, at hard
labor, (or a torm not less lhau four years.”
The llth section authorises the Gov
ernor, 11 should he deem "it iiecosxary for
the protection of its* mines, orthb ouforco-
nteni of tho laws in lurcu within tfieCher-
okoo Nation, to raise aud organize a
.guard," fitc.
■Tbe.lSlb section enact*, “that (he » n id
guard, or any member of them, shall be,
and they ere hereby, authorised und em
powered to arrest any person legally chat -
gi-3 with or detected iu a violation of the
luwsot litis Slate, and to coovoy, at soon
as practicable, the person so arrested, be
fore a justice of the peace, judge of tbe
-cuperior, or justice of inferior court of this
.$t«te, to bo dealt with according to'law.”
The extra territorial power of every
.Legislature being limited iu its action, to
its-own cittaeos or subjocts, thy very pat-
•age-of this act is an assertion of juried ic-
lio* over the Cherokee Nation,and of the
rights nod power# censequeut ou jurisdic
tires. '
The first step, then, in tho inquiry
■which llto constitution'and laws impose on
jh'w Coon, it an examination of the right
trinest of tit's claim.
tf ty *X iuJ in Bjo-.s by a
annul dm pro-existing rights of its undent
possessors.
After lvin£ conc.euh-d for a series cf a-
gee, tho enterprise of Europe, gtitdet by
nautical science, conducted some of her
adventurous sons into this Western wtrld.
They -found it hi possession of. a pespln
who had made small progress in agricul
ture or manufactures, and whose genital
employment was war, hunting, and Isli-
IHg.
Did these adventurers, by sailing a*
long tho coast and occasionally landing on
it, acquire for the several Government) to)
whom they belonged, or bv whom (my j
were commissioned,.a rightful property in
the soil from the Atlantic to the Pntiftr;
or amojraaee of tlieezid. several iolonies
or plantations.”
Tho charier to Connecticut concludes
a gewral power to make dqffosive war
with these terms : “ and 'uponjfoM causes
to invtrdennd destroy the natives or other
enemies of the said colony.”
- . The same power; - in the same words
is conferred on the government of Rhode
Island.
pleased to surrender any of your territo-’
riesto his majesty-, ft must be done, for
(lie future, at • pablic meeting of your
nation, when the governors of the provin
ces, or-the superintendent shall be pre
sent, and obtain the consent oT all your
people. The boundaries of your-hunt
ing grounds will be accurately fixed, and
nosetilementpermitted lo be mado upon
them. As you may be assured that -all
or juries of both parlies, as neav as can j struction of the protected. T i
be to the laws, customs, sod usages, of in which this stipulation was un
tho contracting parties, and natural jus- by the American Government, is P
ticc,” Ac. ed by tbe language and acts of our first
This power 10 repel invasion, and, up-; treatids with yoo will bo fuithlully kept,
. . * I . . I J a . L.. ... U naiwiilijtil <!■(>• (lie,- Sir ill l SCI
on just cause, to invade afcd destroy tho
natives', authorises offensive as well as de
fensive war, but only ‘hilt just cause.”
The very terms imply the existence of a
so it is expected that yoo, uIm, will be
careful strictly to observe them.”
■ The proclamation issued by (tie King
of Great Britain, ip 1763, soon after the
country to be invaded, and of ah enetpyj ratification of the articles ol peace, fbr-
wlio has given |uxl cause of wur. i'bids the governors of any of the colonies
The chaifor to Wm. Penn contains iliej to grant wairants of survey, or pass pa-
lollineiiig recital: “and because, in so re- j tents upon any lands whatever, which,
mote a country, near so many batbarotis not having been ceded to, or purchased
nations, the incursions, as well of the by, os, (the King) as aforesaid, are rc-
snvngns themselves, ns of other enomfos, | served to the said Indians, or any of (Item,
pirates, and robbers, may probablv be; The proclamation proceeds: “and we
feared, therefore wc have grvetr,” Ac. do further declare it to be our royal will
The ' instrument (hen confers the power and pleasure, for the present, asaforesnid,
of war. . to reserve, under our sovereignty, pro-.
These barbarpos nations, whose incur- lection, and dominion, for the use of the
lions were inured, und to repel whoso in- said Indians, all the foods and territories
cut sioils the |tower to make war was giv
en, were suie|y not considered as the sub-
or rightful dominion over the. numerous ; jects of Penn, or occupying his lands du
people who occupied it? Or has nature
or the great Creator of ull things conferred
those rights over hunters and fishermen, on
agriculturists und mnnufuejurers?
But power, war, cupqutM, give rights
which, after possession, an conceded by
the world, and which can tever bo con
troverted -by those on whoii they descend.
We proceed, then, to,thy actual state of
things, having glanced at their origin; bo-
cause holding it iu our ncollectiou might
shed some light on existing pretensions.
The grout maritime powers of Europo
discovered and-visited different parts of
tilts continent ul nearly the sumo time.—
The object wus too immerse for any one
of them to grasp the whole; and the cfoi-
■nauls were mo powerful to submit to tbe
exclusivo or unreasonable pretensions of
any single potoututc. To avoid bloody
conflicts, which might terminate disas
trously >o all, it was necessary for the po
tions Europe to establish some principle
whicu aft would acknowledge, and which
should deetdo their respective rights as
between themselves. This principle sug
gested by tlth actual stale of things; “ that
discovery gave title to the Government by
whose subject* or by whose authority it
wus made, against all oilier European
Governments, which tide might bo con
summated by possession.”*
This principiu, acknowledged by all
-Eutopeaus, because it was the interest el
all to acknowledge it, gave to tho uatiuu
making (he discovery, ns its inuvituble
consequence, tho solo right of acquiring
the soil, and ntakmg settlements on it.—
It whs an exclusive principle which
shut out the right of competition among
those who had agreed to it; not one
which could annul the previous rights of
'those who bad not agreed to it. It regu
lated the right given by discovery among
the European discoverers; but coqld not
affect the rights of those already in pos
session, cither as aboriginal occupants or
as occupants by virtue of n discovery
made before tho'memory of man. It
gave the exclusive light to purchase, but
did not found that right on a denial of the
right of the possessor to sell.
The relation between tho 'Europeans
and the natives wus determined mi each
caso'by the particular Government winch
asserted and could maintain this'pre
emptive privilege in the particular place.
The United States succeeded to ull' tho
claims of Great Britain, both territorial
and political; but no attempt, so far as is
known, has been made to enlarge them.—
So far as they existed merely in theory,
or Were in their nature only exclusive of
the claims Of olhei European.nations they
still retain their original character, and
remain dormant- So far as they have
been practically exerted, they exist in
fact, are understood by both parties, are
asserted by the one, aud admitted by the
other. ' '
Soon after Great Britain determined
on planting colouies iu America, tho King
granted charters to cbihpntttes of hi* sub-
jocts, who associated for the purpose of
currying the views of the crown into ef
fect, and of enriching (lienisolves. The
first of these charter* was outdo before
possession was taken of any part of the
country. They purport generally to
convey the sod, from tho Atlantic to tho
South Sen. This soil was ‘occupied by
numerous and warlike unions, equally
witling and able to defend their possessions.
The extravagant and absurd idea, that ibe
feeble settlements made on tho sea coast,
or the companies undor whom ihey were
unde, acquired legitimate power by them
to govern llto people, or occupy the lands
fiam son to soa, did not enter tbe mind of
any mnn. They were well understood
to convey the title -which, according lo
the common law of 'European sovereigns
respecting America, they might rightful-
Iv convey, and no more. This was the
exclusive right of purchasing sttrlt lands
as the natives were willing to sell. The
crown could not he understood to grunt
what iho crown did not affect to claim,
nor w»* it so understood.
Tho (lower of making war is conferred
Itv these Charters on the colonies, but rfe-
fauive war alone seems lo have Icon cun-
'templated. In the first chariet to the
the first and second colonies they are em
powered, “for their several deftueet, to
encounter, expulse, repel, and mist, nil
persons who shall, without license,” at
tempt to inhabit “ within the laid ‘pre
cincts and limits of tbe said several colo
nies, or that shall enterprise or attempt
at any time hereafter the least detriment
rT ’ * ath Wh. &73
ring Ilia pleasure.
Tito same clauso is Introduced into the
charter to Lord Baltimore.
Tbo cluirler to .Georgia professes to
bo granted for tbo churitable purpose of
enabling poor subjects to gain n comfqrla-
biu subsistence by cultivating lands in the
American provinces, “at present waste
and desolate.” It recites: "and where
as our provinces iu North America have
been' frequently ravaged by ludltm uue-
mies, more especially that of South Car
olina, wIiicIl, in the late war by tjie neigh
boring savages, was laid waste by fire and
sword, and great numbers of the English
inhabitants miserably massacred; and our
loving subjects, who nbw inhabit there,
by reason of the smallness of tlieir num
bers, will, in case of any now war, be
exposed tn like calamities, inasmuch as
their whole Southern Homier continurlh
unsettled, und limit opco to tbo said sa
vages."
These motives for planting (ho netv
colony nro Incompatible with the lofty
ideas' of granting the soil anti all its in
habitants Horn soa to sea. They demon
strate the truth, that these grunts inserted
a title against Europeaus only, and were
considered as blank paper so far ns the
rights of llto natives wore concerned.—
The power of war is given only for de
fence, nor for conquest.
Tim charters contain passages showing
otto of their object* to be the civilization
of the Indians, and their conversion to
Christianity—objects to be accomplished
by conciliatory conduct, and good exam
ple ; not by extermination.
Tho actual slum of things, and llto
practice of European nations, oq so much
of tjte American comment as lies between
the Mississippi mid the Atlantic, explain
their claims and the charters they granted.
Their pretensions unavoidably intetfered
with each other; though the discovery
of ono was admitted by all to exclude
the claim of any other, the extent of that
discovery wss the subject of unceasing
contest. Bloody conflicts arose between
them, which gave importance nod securi
ty lo llto neighboring nations. Fierce
ami warlike in their character, lltey might
bo formidablo enemies, nr effective friends.
.Instead of rousing their resentments, by
assorting claims to their lands, or to do
minion over.their persons, their nlliaoco
was song lit by flattering professions, and
purchased by rich presents. Tbe Eng
lish, (lie French, and the Spaniards, were
equally competitors for tlieir friendship
andthoir aid. Not well acquainted with
the exact meaning of words, nor suppo
sing it to he material whether they wero
called iho subjects, or the children of tlieir
father in Europo; lavish in proiessions of
(duty and affection, in return for the rich
presents they received ; so long its tlieir
actual independence was untouched, and
tlieir right to sell-government acknowl
edged, lltey were willing to profess depen
dence oh the Power tchi^h furnished sup
plies of .winch they tvers in absolute need,
and restrained dangerous intruders from
entering tlieir country r and this was pro
bably the sense in which (ho term was un
derstood by them.
Certain it is, that our history furnishes
no example, from the first settlement of
our country, of any attempt, on the part
of the crown, to interfere with the inter
nal affairs of the Indians, farther than to
keep out tho agents of foreign Powers;
• who, ns traders or otherwise, might se
duce them into foreign alliances. Tlie
King purchased tlieir lands when they
tvero willing lo sell, at a price they ware
willing to take; hut never coerced a suit-
render of them. • He also purchased tlieir
Rlliance and dependence bv subsidies;
hut never intruded into the interior of tlieir
affairs, or interfered with their self-go
vernment, so far us respected themselves
only.
The general views of Great Britain,
with regard to the Indians, were derail
ed by Mr. Stuart, superintendent of In
dian affairs, in a speech delivered at Mo
bile, in presence of several |>ersons of
distinction, soon after the peaco of 1703.
Towards the conclusion tie says, “lastly,
I inform you that it is the King’s order u>
ull his Governors and subjects to treat tlie
Indians with justice and humanity, nixi
to forbear all encroachments on the tetj-
ritories allotted to them ; accordingly, till
individuals are prohibited front pm cha
sing any of yonr lands ; but, as you know
that, as your white brethren cannot feed
you when you visit them, unless you give
them ground tn plant, it is expected that
v5u will code lands to the King for that
purpose. Cut, whenever you shall bo
lying to the westward of the sources of
tlie rivers which fall into tho sea, from the
west und northwest os aforesaid: and wo
do hereby strictly forbid, on pain of our
displeasure, all our loving subjects from
making any purchases or settlements
whatever, or taking possession of any of
the foods above reserved, without our
special leave and license for that purpose
first obtained.
And wo do further strictly enjoin and
require all persons whatever, who have,
either wilfully or inadvertently, seated
themselves upon any lands within the
countries above described, or upon any
other lands which, not having been ceedcil
to, ot purchased by us, are still reserved
to the said Indians, os aforesaid, forthwith
to remove themselves from swell settle
ments.”
A proclamation, issued by Governor
Gage, in 1772, contains the fallowing
passage; “Whereas ninny persons, con
trary to the positive orders ol tho King,
upon this subject, have undertaken to make
settlements beyond the boundaries fixed
by ilie.treaties made with the Indian na
tions, which boundaries ought to servo as
a.,barrier between tlie whiles and the said
nation*;” particularly on tho Ouabaclie,
the proclamation orders such • persons to
quit those countries without delay.
Such was the policy of Great Britain
towaids the Indian nations inhabiting tlie .
territory from which she excluded all oili
er Europeans ; such her claims, and such
her practical exposition of the charters
she had grunted : she considered them-ns
nations capable of maintaining the rela
tions of peace and wm ; of governing
5th. The fifth' article regelates the trade
between the contracting parties, iu a man
ner entirely equal.
6th. The sixth article is entitlod to pe
culiar attention, ns it contains a disclaim
er of designs which wpre, at that time, as
cribed to the United States,, by their en
emies, and front tho imputation of which
Congress was then peculiarly anxious to
free the Government. It is in these
words: ".Whereas ilk? enemies of the
United States have endeavored, by eve
ry artifice in their power, lo possess the
Indians in general with an opinion that
it is the design of the States aforesaid to
extirpate the tpdians, mid take posses
sion of their country: To obviate such
false suggestion the United States do en
gage to guaranty to the aforesaid nation
of Delatvaros, and their heirs, all their
territorial rights, in the fullest and most
ample manner, us it hath been bounded
by former treaties, as lung as the said
Delpware nation shall abide by, and hold
fast, tho chain of friendship now entered
into."
Tho parties further neree, that other
tribes, friendly lo tho interest or the U.
Slates, may be invited to form a State,
Whereof the Delaware nation should be
the head, and have a representation m
Congress.
This treaty, in its language, and in its
provisions, is formed, os near as may be,
on the. model of treaties between the
crowned heads of Europe.
Tho sixtYi article shows how Congress
(lien treated tho injurious calumny of
cherishing designs unfriendly to the polit
ical and civil rights of the Indians.
During the war of the Revolution, the
Cherokees took part with tlie British.
Afiorits termination, the United Stales,
though desirous of pence, did not feel its
necessity so strongly ns while the war con
tinued. Their political .situation being
changed, they might very Well think it ad'
visnble to assume a higher tone, and to
impress on the Cherokees the same re
spect for Coogtoss which was before fell
for *he King of Great Britain. This may
President.
The fouith article draws the boundary
between the Indians and tlie citizens of
the United States. But, in describing this
boundary, the term “ allotted” and tho
term “ hunting ground” are used.
Is it reasonable to suppose, lliat the JO"
dians who could not write, and most prob
ably could not read, who certainly were
not critical Judges of our language, should
distinguish the word “ allotted” from the
words “ marked out.* 1 The* actual sub*
ject of contract wits the dividing line be
tween the two nations, nivd their attention
may very well be supposed to have been
confined to that subject. When, in f ac N
they were ceding lands lo the-United
States, and describing the extent of their
cession, it may very well be supposed that
they might not understand tho term em
ployed, as indicating that, instead of grant
ing, they were receiving lands, if the
term would admit oftto other signification,
•which is not conceded, its being misun
derstood is soappnrent, results so neces
sarily front (he whole transaction, that it
must, we think, be taken in the sense in
which it was most obviously used.
So with jespoci to the words “ hunting
grounds.” Hunting wns at that time the
principal occupation of the Indians, and
their land was more used for that purpose
ihun for any other. 1 could not, howev
er, be supposed, that aoy intention existed
of restricting the full use of the lands they
reserved. ,
To the United States, it could be a
matter of no concern, whether their whole
territory was devoted lo hunting grounds,
or whether an occasional village, and an
occasional corn field, interrupted, and gave
some variety to the scene.
These terms ht-d been used in their
treaties with Great Britain, and had never
been misunderstood. They had never
ItSen supposed to imply a right in the Brit
ish Gjlutrnmoiit to taite their lands, or to
interlflV with their internal Government.
The 5th article withdraws the .protec
tion of the United States from any citizen
who has seeled, or shall settle,onthe foods
account for the language of tho treaty of] allotted to the Indians, for tlieir hunting
Hopewell. 'There is the more reason for
supposing that the Cherokee chiefs were
no] very critical judges of tho language,
from the fact that every one makes his
mark; no chief was capable of signing
his name. It is probable the treaty was
interpreted to them.
The treaty is introduced with the dec
laration, that "The commissioners plen
ipotentiary of the United States give
pence to ull the Ghetokecs, and receive
them into the favor and protection of the
themselves, under her protection ; and i United Slates of Aniericn, on theToilpw-
sho made treaties, with them, the oblige- mg condition"
lion of which she acknowledged.
This was the settled slate of things
triien the war of our Revolution commen
ced. Tlie influence of our enemy was
established ; her resources enabled her lo
keep up that influence; and the colonists
hnd much cause for the apprehension that
the Indian nations would, us the allies of
Great Britain, add their arms to hors.—
This, as was to be expected, became an
object of great solicitude lo Congress.
Far front ndvuncfog a claim to tlieir lands,
or asserting any right of domiuion over
them, Congress resolved “ that the se
curing and preserving the friendship of
the Indian nations appears to be a subject
of the utmost moment to these colonies.”
The early journals of Congress exhib
it the most anxious desire lo conciliate tho
Indian nations. Tltroo Indian depart
ments were established; and commission
ers appointed in each, “ to treat with the
Indinus in their respective departments,
in the name and oir behalf of the United
Colonics, in order to preserve peace and
friendship with the said Indians, and to
prevent their taking any part iu the pre
sent commotions.”
The most strenuous exertions were
made to procure those supplies on which
Indian friendships were supposed to de
pend, and every thing which might excite
-hostility was avoided.
The first treaty tvas ritade with the De
lawares, in September, 1778.
The language of equality ill which it
is drawn, evinces the Ibtnper with which
the negotiation wns undertaken, and the
opinion which then prevailed in the U.
Stales.
“1st. That all offences or acts of hos
tilities, by oho sir either of the contract
ing parlies against the ollm,*, bo mutual
ly forgiven, and buried in the depth of
oblivion, never more to he had iu remem-
brani e. >
“2d. That a perpetual peace and friend
ship shall, from henceforth, take plaro
ami subsist between the contracting par
ties aforesaid, through all succeeding gen
erations; and if either of tire parlies are
engaged in a just and necessary war, with
any other nation or nations, that then each
shall assist tho other, in due proportion
to (heir ahHiries, till tlieir enemies are
brought to reasonable terms of accommo
dation” dtc.
2d. The third article stipulates, umohg
other things, • free passage for tho Amer
ican troops through the Delaware nation,
and engages that they shall be furnished
with previsions and other necessaries at
their value.
“4!h. For the better security of the
peace and friendship now entered into by
the contracting parties against all infrac
tions of the same by tbn citizens of either
party, to the prejudice of the other,
neitlier party shall proceed to the iuflic-
linn of punishments on the citizens of
the. other, otherwise tiun by seruring tbe
>(lender or offenders, bv Imprisonment,
or arty other competent menus, till n fab
and impartial trial con bo hud by judges
When tlie United States gave pence,
did they not also receive it t Wore not
both parties desirous of it ? If we con
sult ihe history of the day^oes it not in
form us that tlie United fftites were at
least as anxious to obtain it as’the Cliero-
keos? We may ask, further: Did the
Cherokues come to the sent of the Amer
ican Government lo solicit peace; or,
did the American commissioners go to
them to obtain it? The treatv was made
nt Hopewell, not at New York. The
word “give,” then, has no real impor
tance attached lo it.
Tho first and second articles stipulate
for the niatual restoration of prisoners,
and are of course equal.
The third article acknowledges the
Cherokees to bo under the protection of
the United Siutes of America, am] of no
othor Power.
This stipulation is found m Indian trea
ties generally. . It was introduced into
those treaties with Great Britain ; and
may probably be found in those with other
European Powers. Its origin may be
traced to' the nature of their cobnOxion
with rhoso Powers ; and its true'meaning
is discerned in tlieir relative situation.
The general law of European sover
eigns, respecting their claims in'America,
limited the intercourse of Indians, in a
great degree, lo the particular potentate,
whose ultimate light of domain was ac
knowledged bv the others. This wns the
general stale of things in lime of peace.
It was sometimes changed in war. The
Thp consequence wns, that their supplies
were derived chiefly from that nation, and
tlieir trade confined to it. Goods, indis
pensable to their comfort, in tho shape of
presents, were received from the same
hand. What was of still more impor
tance, tho strong hand of Government
was interposed to restrain (lie disorderly
and licentious from intrusions into tlieir
country, from encroachments on tlioir
lands, and front thosq^acts of violence
which worn olien attended by reciprocal
murder. The Indians, perceived in this
prelection, only what was beneficial to
themselves—an engagement to punish ng-
gressions on them. It involved practical
ly no claim to their lands, no dominion
over their persons. It merely hound tho
nation to the British crown, ns a depen
dent ally, claiming she protection of a
powerful friend and neighbor, and receiv
ing the advantages of iltur protection
without involving u surrender of their na
tional character.
This is the true meaning of the stipula
tion. and is undoulucdly the sense in which
it was made. Neither the British Govern
ment, . nor the Cherokees, over' under
stood it otherwise.
The same stipulation entered into with
tlie United States, is undoubtedly to be
construed in the*same manner. They re
ceive the Cherokee nation into their fovor
tnd protection. The Cherokee* zcknowl-
. dge themselves to bo under the protection
aftlm Uuited States, and of no other Pow-
or. Protection <foes not imply tho ,Ic-
grouitds; aud stipulates that, it'be shall n.ot
remove within six months, the Indians
may puuish him.
The 6th and 7th articles stipulate for
the punishment of the citizens of either
country, who may commit offences on or
against the citizens of the other. Tito
only inference to be drawn from them is
that tbo Umied Slates considered the
Cherokees as a nation.
The 9th article is in these words.-—
For the benefit and comfort of tho In
dians, and for the prevention of injuries or
oppressions on the part of tbe citizens or
Indians, the United States, in Congress
assembled, shall have the sole and exclu
sive right of regulating the trade with the
Indians, and managing all their affairs as
they think proper.”
To construe the expression “ managing
all tlieir affairs,” into a surrender of self
government, would be, we think, a per
version of their necessary meaning, and a
departure fron* the construction which has
been uniformly put on. them. The great
subject of the article is tlie Indian trade.
The influence it gave;,made it desirable,
that Congress Should: possess it. Tho
commissioners brought forward the claim,
with the profession that: their motive wns,
“ the benefit and comfort ef the Indians,
and the provontion of mjjuries «w oppres*
sions.” This may be true, ns respects
the regulation of tlieir tsadti, and a* r°*
spores t lie regulation of aRaffiiirs connected
with their trade, hut cannot be true, ns re
spects the management of all their affairs.
The most important qf these, is the ces
sion of tlieir lands, and security against in
truders oh them. Is it credible, that they
could have considered themselves as sur
tooderiqguo. the United States, tho right
to dictate rheir future cessions, and the
term* on which they should be nmde? ot
to compel their submission to tlie violence
of disorderly and licentious intruders? . (t
is equally inconceivable tlmt they could
have supposed themselves by a phrase
thus slipped into an urfiele, on another and
most interesting subject, to have divested
themselves of the right of self government
on subjects not connected- with- trade.—
Such u measure could not,bo “ for. their
benefit mid comfort,” or for “ the preven
tion of injuries and oppression.” Such n
construction would be inconsistent with
the spirit of this and of all subsequent trea
ties; especially oi'lhuse articles which re
cognise the right of the Cherokees to dc-
clare hostilities, and 4o make war. .It
would couvert a treaty of peace covertly
into an act, unnibifotiug the political ox is- *
tonce of one of the parties. Had such «
result been intended, it would have been
openly avowed,.
I Ins Monty contains n few terms ctlnn-
ble ol b<nng used in a sense 'Which could
noi hrtvo hcen intended at the time, and
wtucli is inconsistent wirli the praclicablo
construction which has always been put
oni them; but it* essontial articles treat the
Cherokees as a nation capable of maintain
ing tbe relations of pence and war; and ns .
certain the boundaries between them and
the Limed States.
The treaty <if IIopcWcll seems not (a
have established a solid peace To ac.
commodate the differences still existing
be-wcen the State of Georgia and the
Cherokee nation, the treatv of Hofoton
wa. negotiated, in July, l 79 l. The ex is
nig coast, tutton of the U„ itwJ S.ato«h a d
been then adopted, and the Government
having more tutrinsic capacity to «
perimhv W a '‘hL’ re,SiDn, • ,leno ""? su
periority. wo hear no more ofeivinw
.pence to the Cherokee* The muttml d^