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CHEROKEE PHOENIX ANDtNDIA^S* ADVOCATE.
m
!MA&1 fc
sa».
Is it not, that the party protected is
to have all its rights secure, not only
against others but against the protec
tor also? If some rights are yielded
as the price of protection, is it not that
other rights may be preserved with
the greater care and certainty?
•It is said that the United .States
were to have the sole and exclusive
tight of regulating trade with the Chcr-
okees. True; but this was expressly
declared to be^for the benefit of.the
Indians, and to save them from injus
tice and oppression. These lauda
ble objects were gabled to a consider
able extent; and if the laws of the
United States on this subject had been
always carried into full execution, the
condition of the Indians would have
been rapidly improved, as a conse
quence of this very stipulation.
It is said that the lands of the In
dians arc called *lhcir ll hunting
grounds',and that they could not,
therefore, have a permanent interest
in the lands thus described. But how
docs this appear? The treaty has no
limitation of time, nor is there the
slightest intimation that it was to be
come weaker by the lapse of years.
As the Indians gained their principal
support by hunting, it was natural to
designate their country by the phrase
•‘hunting grounds,” & this is as good a
designation, in regard to the validity of
a title, as any other phrase that could
be chosen. It contains the idea of
property, and has superadded the idea
of constant use.
But to put the matter beyond all
question at once, let me refer to two
treaties made at the same place, by
three out Of four of the same Ameri
can Commissioners, witlrin six weeks
bf the date of the Cherokee treaty.
In both these documents, “lauds”
are allotted to the Choctaws and
ChickaMwS “to live and hunt on.”
These lands were secured to tho In
dians, then, so long as any of the race
survived upon earth.
Having been occupied some time,
in considering the indication of supe
riority, let us look a little at the
proofs of equality. I leave to a fu
ture occasion some remarks upon the
words treaty, peace, contracting parlies,
&c: which carry with them sundry
moSt important significations.
The two first articles are strictly
reciprocal. Each party is torestore
prisoners of war. The articles would
be proper, mutaiis mutandis, in a trea
ty between France and England.
The Gth and 7th articles provide,
that crimes committed against indiv
iduals of one party, by individuals of
the other, shall be punished, in the
same manner.
The 8th article has the remarkable
provision, that no retaliatory measures
shall be adopted by either party,. «»*
less this^lreaty shall be violated, and e-
ven then, before such measures can
be adopted, justice must have been
demanded by the complaining party
and refused by the other, and
declaration oj hostilities” must have
been made. Thus it is admitted, as
well as in the two articles, that the
Cherokces have the same right to de
clare war, as other Powers of the
earth have. To declare war and
make pence arc enumerated, in our
own declaration of independence, as
among the highest attributes of nation
al sovereignty.
The present doctrine is, that the
Indians were regarded, as a non-de-
script tenants at will, enjoying by
permission some imperfect privilege
of hunting on grounds which really be
longed to the United States.. But
whoever heard of tenants at will be
ing solemnly admitted to have the
right of declaring war upon their land
lords? These tenants were also
strangely allowed to possess the right
of punishing, according to their pleas
ure, any of their landlords who*hould
“attempt to settle” upon any lands,
which, it is now contended, were
then the absolute property of said
landlords. But I shall have other oc
casion pf bringing this interpretation
to the test.
After the treaty of Hopewell
white settlers pushed forward into
' the wilderness in the neighborhood of
the Indian; difficulties arose; blood
was shed; war was declared; the new
settlements in that quarter were in a
. state of grea't alarm and anxiety
In the meantime, the new consti
tutiou-had gope into operation. The
treaty-making power, which had been
exercised by the Old Congress, was
now confided to the President and
Senate of the United States. Gen
- Washington, who always pursued
magnanimous policy with tho Indians
as Well as other nations, took the
proper measures to establish a peace.
On the 2d of July, 1791, the treaty
of Holston was made; and it was af
terwards ratified by President Wash
ington and the Senate. The title is
in these wordBi
“A treaty of peace and friendship,
made and concluded between the
President of the United States of A-
merica', on the part and behalf of the
States, and the undersigned Chiefs
and Warriors, of the Cherokee nation,
on the part and behalf of the said no
tion/’
PREAMBLE.
“The parties being desirous of es
tablishing permanent peace and friend
ship between the United States and
the said Cherokee nation, and the
citizens and members thereof, and to
remove the causes of war by ascer
taining their limits, and making other
necessary, just, and friendly arrange
ments: the President of the United
States by William Blount, Governor
of the Territory of the United States
South of the River Ohio, and Super
intendent of Indian Affairs for the
Southern District, who is vested with
full powers for these purposes, by and
with tho advice and consent of the
Senate of the United States; ami the
Cherokee nation, by the undersigned
Chiefs and Warriors representing the
nation, have agreed to the following
articles, namely:”
I have thought it best to cite the
whole title and preamble, that the
reader may see in what manner the
parties to this instrument saw fit to
describe themselves; or, more prop
erly, in what manner the Plenipoten
tiary of the United States, with the
President and Senate, saw fit to de
scribe these parties; for it will not be
pretended that the Cherokces. reduced
the treaty to writing. This is the
second treaty, which was made wiA
Indians, by the Government of the U-
nited States, after the adoption of the
Federal Constitution. The first was
made with the Creek nation; and was
executed at New York, August 7th,
1790, by Henry Knox, then Secreta
ry of War, as the Commissioner of
,tlie United States, and twenty-four
Creek Chiefs, in behalf of their nation.
In comparing these two treaties, it is
found, that the litle and preamble of
the Cherokee treaty are an exact
transcript from the other, except
that; “Cherokee” is /inserted instead
of “Greek,” and the word “Kings,”
before “chiefs and warriors,” is o-
mitted, as are the \Vords “of Indians,”
after the words “Creek Nation,” in
the title. All the principal articles
of the two treaties are also mulatis
mutandis, the same in substance, and
expressed by the sanle phraseology.—
As Governor Blotmt made the Cher
okee treaty after tho model of the
Creek treaty, there can be little doubt
that he was directed to do so, by the
head of the War Department. It is
morally certain, that the Creek trea
ty was drawn up not only with great
care, but with the concentrated wis
dom of a cabinet, which is universally
admitted, I believe, to have been the
ablest and the wisest, which onr na
tion as yet enjoyed. General Wash
ington was at its head,—always a
cautious man, and eminently so in lay
ing the new foundations of our union,
and entering into new relations. This
treaty was made under his own eye,
at the seat of , Government, and wit
nessed by distinguished men, some of
whom added their official stations to
their names. The two first witness
es were “Richard Morris, Chief
Justice of the State of New York,”
and “Richard Varrick, Mayor qf the
City of New York.”
Theso treaties were, in due Sea
son, ratified by the Senate of the Uni
ted States, at that time composed ; of
men distinguished for their ability.—
Among them was Oliver Ellsworth,
afterwards Chief Justice of the Uni
ted States; William Patterson, after
wards an eminent judge, of the Su
preme Court of the United States;
Rufus King, afterwards for many
years Minister of the United States
at, the British Court; and William
Samuel Johnson, who did not leave
behind him in'America a man of equal
learning in the Civil Law and the
Law of Nij^gns. These four Individ
uals, and six other Senators, had been
members of the- Convention, which
formed the Federal Constitution,
though Mr. Ellsworth did not sign
that instrument, having been called a-
way before, it was completed. He
was a most efficient member however,
in the various preparatory discussions;
and did much in procuring the adop
tion Of the constitution, by the State
which he had represented.
The reader may fairly conclude,
that the document in question is not
a jumble of words, thrown together
without meaning, having no object,
and easily explained away, as a pom
pous nullity. On the contrary, it
was composed with great care, exe
cuted with uncommon solemnity, and
doubtless ratified with ample consid
eration. It has, therefore, a solid
basis; and a substantial meaning.—
That meaning shall be considered in
a future number. ..••• ™
WILLIAM
From the Connecticut Observer.
That our forefathers purchased the
lands of the Indians, that they thought
thcmsclvc obliged, in conscience to
do it, because the Ihdians owned the
land, and that they gave a fair price,
are points as well ‘settled as almost
any in the early history of our coun
try.
1. Thty purchased the landi of
the Indians.—Mather says, “That
the English did not claim one foot of
ground in the country, till they had
fairly purchased it of the natives.”
Neale says; “None of the Ehglish
were suffered to take an acre of land
from the natives Without giving them
satisfaction for it.” Trutnbull says
that the planters of Connecticut,
“purchased Of the respective Sach
ems atid their Indians, all the lauds
which they settled excepting the
towns of New Londoh, Groton, and
Stonington, which were consid
ered as the peculiar Seat of the Pe-
quot nation,” and consequently, as.
properly falling to the English by the
right of Conquest. “Indeed, says he,
Connecticut planters generally made
repeated purchases of the land.” On
this point we might add the testimo
ny of Hutchinson—but is -is unneces
sary.
2. Our forefathers thought themselves
obliged in conscience, to purchase the
lands of the Indians, at a fair price, be
cause they were the proper owners of the
land. “Our conscientious forefath
ers” never supposed “they had as
good a right to occupy the soil of A-
merica, os the natives.” This is
matter of record. Belknap says,
“Some of the scattered planters in
the Bay of Massachusetts, being de
sirous of making a settlement in the
neighborhood of Piscataqua, and fol
lowing the example of those at Ply
mouth, who had purchased their lands
of the Indians, wliic\\ they conscientious
ly thought necessary to give them a just
title, procured a general meeting of
the Indians.” &c. Hutchinson says
“The country to which they them
selves had removed, was claimed by
independent princes. They therefore
looked upon themselves obliged, and ac
cordingly, as appeared by their records,
actually had pttrchased, for valuable
considerations,' hot only the toil, but the
dominion, the lordship and sovereignly
of those princes.”—Again: “The first
settlers of Massachusetts and Ply
mouth, were not content with this,
(the plea that a small number of fain
ilics laid claim to a greater part of
the globe than they were capable of
improvingbut made conscience of
paying the natives to their satisfac
tion, for all parts ortho country which
were not depopulated or deserted,
and left without a-efaim.” There
is no such a tiling as mistaking this
testimony. If it is true, it decides
the point at once.
3. Our forejothers gave the Indians
a fair price for their lands. This is
shown by the authorities quoted a-
hove. We will add thp testimony of
Trumbull. “In purchasing the lands
and making settlements, in a wilder
ness, the first planters of Connecticut
expeuded great estates. It has been
the opinion of the best judges', who
have had the most perfect acquaint
ance with the ancient affairs of the
Colony, that .many of the adventurers
expended more, in making settlements
in Connecticut, than all tTie lauds and
buildings' were worth, after all the
improvements which they had made
upon them.” He further states that
“This was the general opinion among
men of extensive knowledge,, in Mass
achusetts as well as Connecticut.—
Governor Hutchinson, in a manuscript
which he wrote against the Stamp
Act, observed, that land in New En
gland, at the time of its settlement,
was of no value.” The first settlers did
much for the Indians, besides direct
payment for the lands. “They suf
fered them to erect wigwams and to
live on the very laild% which they had
purchased of them; and to cut their
firewood ou Uieir unincloscd lands, for
more than a Century after the settle
ments began.” But We must take
all the. circumstances of the case in
to view, before we cart judge correct
ly of tl\e value of the lands, and what
would b*h a fair price. Money was
offar greater value than it is now—
there was much uncertainty whether
the investment would not be utterly
lost, as it would have been, had the
settlement roiscamed-cXpensivc wars
were almost certain, before they
could be secure in thoir possessions—
and thp prospect that the population
would become so dense as to give in
creased value to the lands, was very
remhte. When cur Goverrtment pur
chase lands of the Indians, far on
ward towards the setting sun, it ip t
now certain that the population Will
6oon reach them. Not so when our
fathers made their contracts for the
Indian lauds'. Yet compare what they
gave, in these circumstances, with
the price given by our Government
for Indian lands, & it will appear that
weneed not resort to the questionable
principle of “Mayhew,” in defending
their character. In the year 1821,
the Government of the United States,
had obtained from the Indians, 192,-
000,000 acres. The average price
per acre, if we have calculated cor
rectly, is just about one cent and a
half. For 7,638,400 acres from the
Choctaws, the Government paid, if
we dtinot mistake, about two cents
and a half per acre! For* 50,269,-
440 acres bought of the Great and
Little Osages, or ceded by them in
1818, H permanent annuity is paid by
the United States, of $1500, making
abbut half a mill per acre. The
Kickapoos, “/or many millions of some
of the best land in the United Slates,”
—part of it lying on the Wabash—
receive an anriuity of #2000.—Yet,
notwithstanding this low price* we
think it has more than once been
stated that it wOhld have been better
for the country, so far as dollars and
cents are concerned, had the money
paid for the lands been putout at inter
est.
At a time when there seems to he
a disposition in a part of our country
men to oppress the Indians, and to
get hold of their lauds, it is peculiarly
desirable that the deeds of our fore
fathers, should not, through misrepre
sentation, be made to authorize what
they most heartily disapproved.
REMOVAL OF THE INDIANS.
On this question the Indians must
decide for themselves: and if they
choose advice from their white
friends, that advice ought to be
given with a knowledge of the cir
cumstances of their situation. We
do not profess to be qualified to ans
wer the question. So far, however,
as we have formed an opinion, it is
decidedly in favor of their remaining
where they are. The considerations
which havo been urged to induce
them to remove, appear to us, to
have very little weight. The argu
ment of the Secretary of War, that
they will ,have a better title to
the country beyond the Mississippi
because the tJnited Slates will guar
antee it, must to a Cherokee appear
supremely ridiculous. ‘What title,’
he may justly ask, ‘cap be better
than that of qccupancy, time immem
orial, end of vvbat avail will be the
guarantee of the United States,
they make so light of the guarantees
solemnly and repeatedly given of the
country which we now occupy?’
Equally idle is the reason so often
urged, that they must remove in oi
der to get rid of troublesome heigh
bori, that if they 1 remain where tlie^
arc, the whites will steal their cattle
and intrude upon their grounds. To
this the Cherojcee may well say ‘If it
is once known that the Indian will
leave his lands and abandon his cqyn
try because he has troublesome iteigli
hors, huw long will it be before he
Will have troublesome neighbors
the country beyond the Mississip
. and where on earth can he go, and
rid of troublesome neighbors.’
In addition to the want of force
the arguments which are urged for the
removal of the Cherokees, there are
many substantial reasons for their re
taining in the country which they now
occupy. It is the country of their
ancestors,—they are strongly attack
cd to it—they have maffe man^ im
provements in it; they have enclosed
farms, and cultivated them, built
houses,.shops and nulls, they are hd
vancing rapidly in population, the arts,
learning, mortis and religion, and are
altogether a thriving and prosperous
people. If t hey remain‘ftvhere they
are, there seems totbe tio reason to
doubt that they will be highly respec
table and happy—but if they remove/ .
—every thing, to say the Idnst, is put
at hazard—we can hardly conceive it
possible that their situation In any re
spect can be improved,while we readi-
lyseehow in many ways it maybe made,
worse, and that they run the risk of
losing all the advantages which they
now possess.—JV*. F. Obs.
RIGHTS OF THF INDIANS.
This day we commence publishing
a series of / Essays, signed Williamr y*
Penn, oh the claims'of our red breth-'^
reh to justice and good faith from opr
government-/ The subject is import
tant, and wc hope the constituted a*
gents for the transaction of business
with the Indians, or in relation to .
them, will conduct their agency on •
honorable principles. Should any
rule of proceeding* be agreed on*
which we should be .pshawed to offer
to Great Britain as dishonorable, a’
reproach must attach tortile officer
by whom or by whose authority such
a proposition may be made. Let the
rule of holy writ, which all agree is
a good one, “As ye would that mert ,
should do to you, do ye even so to
them,” govern all our intercourse.. ,
with these tribes, and our nation will
be respected for its equal justice.—
But if a scheme of mere speculatfoiiSt/ *
e our pourse, our policy^
)e urged against,
us by anotbdr u^tion witlv whom weW ,
may hereafter he treating, and tlie
blush of shame for our coifduct may*
confound us. But what' is of ill"
finitely more consequence than air v
this, is, that He who judgetli among .
the nations, and who abhors the op
pressor, will be offended; and in his ./
providence he may say to us, “Th© jjfc
measure (hat ye mete to others shall •
be mhasured tb you again.” .
Christian' fVatchmim,.
From the Arkansas Gazette.
CIRCULAR.
Cherokee Jlgency, Jl. TV
August 25th, 1829..
Sir—Bv the annexed copy of «
General Order from the War De- *
pnrtment, you will perceive what "
is requisite to entitle you to a re$i^
dence within the" limits of the Cherp- **
kee Nation. That you may aypiq, *
what it prohibits, and (J? w'h'ateye£%
enjoins, I have deemed It my dirty
make it known to you; aud a
IQ
Respectfully, Your ob,t servairt.“ t*?
E. W. <k VAL,
U. S. Jigtnt, fyc*.
[COPY]
DEPARTMENT OF WAR,
Oefice Indian Affairs,
17</i February 1829.
Sir—The excitement which ob.-r
tains so ofteu in the Indian Country,
and the opposition which is felt te-ex-t,
ist against the Government policy r and :
often the inflamed and jealous feclfogS 1
of tho Indians against tho Agents and
the Officers of Government, which i&
fatal in its effects upon the Govern
ment policy, are, there is good reason
for believing, owing, in great part, to*
the presence . and conduct of those/^
white men who, for various causes,
have gone from the States into tl*#
The evil of their presence is felt t.Q ,
such a degree, as to make it uecepjjla^r
ry for the Executive to take steps,
with a view to correct it. 1
In regard, fir$t, to the right of these
S ersons to establish their homes in the
ndian County, they have none, a-
f act front the acquiescence of the
ndipns themselves. But, secondly,
as the Guardian of the Indians, the#
Executive will not permit an evil, so
far as can be remedied, to exist a-
mong them. These persons being
an evil, especially to the Indians;
therefore the determination of the
Executive to relieve them of it.
You are, by order of the Secreta.-
ry of Whr, enjoined, therefore—
Fxw—To allow no white person to
enter and settle on the Indian lands,
within yofir Agency who shall not*
on entering, present to you approved
testimonials of his good character 'for
industry, honesty, and sobriety; nor
tlvenV without the consent of the In
dians.
Secondly—If, after permission is
given,- unqfer Such testimonials, tho
por&on or persons, to whom it is giv
en, shall beoome lazy, dishonest, in
temperate, setting vicious examples
before the Indians, in any way excit*
, log them against each other, or is*-