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CHEROKEE PHOENIX AND INDIANS’ADVOCATE.
^ kort«r35; by Washington and President and every Senate, have
the constellation of brillrant names a- ‘ been guilty ol usurpation, in extending
round bitu in 1791, 1792, and 17.94; j the treaty-making power beyond us
by the elder Adams and his Cabinet legitimate objects, h or it these
fo 1798; by \lr. Jefferson, in four sue- contracts are not treaties, willun the
eev.ive treaties, in 1804, 1805, 1806, true meaniug of the constitution,
I8u7; by Mr. Madison, in several 1 they couJd be made only by the au-
foruted in ISIS; by Mr. Monroe, in • thority of Congress, But the Presi-
1817, General Jackson himself sub-j dent and bonaie alonc-thc trealy-
•cribing jt .vith his own hand as com
missioner; and by another in 1819, to
which Mr. Calhoun affixed his name,
as negotiator. All these treaties
were ratified by the Senate, and sanc
tioned by every department of the
Government.
In 1794, that greatest and best of
men, whose name we profess so much
to venerate, & which should be, of all
others, the highest authority to this
Senate and to the notion, delivered a
speech to the Chiefs and Warriors of
the Cuero-keE"nation, hv which speak
ing of the lands upon Cumberland, he
says: '•■These have been confirmed
by two treaties of Hopewell, in 1785,
and llolstori in 1791.” Again—“The
treaties which have been made can
not be altered. The boundaries
Which have been mentioned must be
marked and established, so that no
dispute shall happen or any xeliite peo
ple cross over it.”
In 1795, the Governor of Tennes
see, upon winch State it is now as
serted these treaties are not obligato
ry, wrote a letter to President Wash
ington, in order to “prevent infrac
tions of them,” by encroachments up
on the lands of Indians. And as late
as 1824, the gentleman from Tennes
see,' win reported this bill, (Mr.
White) gave an able and elaborate
opinion in writing, in which he s’Ten
uously asserts and maintains their va
lidity and the rights of Indians. He
fays “the Cherokecs are to be con
sidered as a nation, a community
having a country distinctly marked
out, and set apart for their use; that
their interest is ns permanent and
fixed.in it, as the pledge and the faith
of the United States can make it; in
asmuch as they have solemnly guaran
tied it to them as a nation, without
any limitation of time.” With refer
ence to the treaty of Holston, He
says they are “to be viewed as a
nation possessing all the powers of o-
ther independent. nations, which .are
not expressly or by necessary impli
cation, surrendered up by that trea
ty;” And again “they have not sui-
rendered the power of making muni
cipal regulations for their owu inter
nal government.”
But now that we, the United
States; are called upon to “be true
and faithful to these engagements,” it
»■ contended they are not obligatory;
& in order to sustain that position, it is
Insisted that the Constitution gives no
power to make treaties with Indian
nations, within the United Slates.—
Although, every President of the U
S. and the members of his Cabinet,
every Administration and all the great
men by whom it was surrounded and
sustained, hare formed- aud. establish
ed such Indian treaties.
Every Senate of the United States,
and I believe, every member of every
Senate have ratified and confirmed
such Indian treaties. Every House
of Representaiives of the United
States, and I believe, every member
thereof, have affirmed und sanctioned
them-, by passing laws for their duo
execution, paying from year to year
tlie annuities secured by them, und
tnaking appropriations to enable the
President to hold others. At this ve
ry session, the Senate has ratified new
treaties; and during the present month,
we have made an appropriation
to enable the president to form ano
ther, with the tribes in Indiana.
While that bill was under discussion
an amendment was proposed, prohi
biting the uge of any part of the money
therein granted, in secret presents to
the Chiefs; and it was insisted by the
gentlemen from Tennessee, Louisiana,
aud Illinois, (Messrs. Grundy, Livings
ton, and Kane) that such a proviso,
merely restricting the U6e of money
which Congress was granting, would
trench upon the high, independent,
constitutional power of the President
in negotiating treaties. Nay, the se
cond section of the bill note under con
sideration, provides for the removal of
“any tribe or nation of Indians, now
residing within the limits of the
States or territories, and with which
the United States have existing trea
ties,”—and now we are told, by the
CHoirman, that such treaties cannot
exist—that they are no treaties.
It is in effect asserted, that every
making power —have always negotiat
ed them, ratified them, and by proc
lamation announced them to the na
tion, as the supreme law ol the land.
Every State legislature, and the
whole people, have heard these an
nunciations, and looked on, during all
these proceedings, in silent acquies
cence.
Even in 1798, when all the acts of
the General Government, and parti
cularly those of the executive, were
scrutinized with the utmost rigour, it
was never suggested even in Virginia,
whore the discussion^ were most ani
mated, that there bad, in ibis respect,
been any irregularity, llut now,
upon the pressure of an exigency, it is
discovered lor the first time, that
all has been wrong. The present
occasion lies brought with it new
a d peculiar lights, by which gen
tlemen now perceive what was in the
minds and intentions ol the framers of
the Constitution, better than they did
themselves. They were ignorant ol
tlieir own work.— L'he venerated la
thers of the Republic, and all the high
and honoured names, who have presid
ed over ils destinies, have been in
volved in deep darkness, and wander
ed in gross error!
1 have thus, Mr. President, endeav
oured to present my views with res
pect to the claims of live State ol
Georgia. Whether we regard ori
ginal principles of international law,
as applicable to the right of discove
ry—or the express powers conferred
by the articles of Confederation—or
thejconfii mntion of pre-existing,treaties
by the adoption of the Constitution—or
the authority vested by that instrument
in the General Government; & the re
nunciation of powers by respective
States—the invariable practice and
usage of the Union, and the acts, ac
quiescence, and assent of Georgia
hcrsalf— it is manifest that we are
bound to perform our engagements to
the Indians, and ru e under no incom
patible ami paramount obligations to
that Stale.
But let us now, for the sake of the
argument, make the violent supposi
tion, that the pretensions of Georgia
are well founded, aud that the Unit
ed States cannot rightfully lulfil tlieir
stipulations as against tier. In that
case the States ol Al bama and Mis
sissippi, would stand on very differ
ent ground. Tlieir claims have been
mingled and blended with those of
the elder sister, as if they were pre
cisely the same, and hers have been
put forward as the only sutjacts of
discussion, when in truth there is a
broad line of distinction, which ought
tube marked and remembered. Foi l
the sake of distinctness and brevity, 1
shall speak of Alabama alone.
It is conceded on all bands, as*"a
fundamental proposition, that the Uni
ted States are bound to fulfil their en
gagements to the Cherokecs specifi
cally, except when prevented by in
compatible obligations, prior in point
of time.
Now, Sir, the State of Alabama
lid not. exist until the year 1819;w lu;ti
she voluntarily came into the Union
after the fifteen treaties with this na
tion, had been previously established
and proclaimed as the supreme law of
the land.
But it is said that Alabama was
formed from territory once belonging
to Georgia, and succeeded to all her
rights. Without stopping to exum.iic
the difficulties attending such a sup
posed transmission of a right to resist
treaties; it is sufficient to say that by
the compact of 1802, Georgia ceded
to the United States all her “light,
title, and claim” “to the jurisdiction
tnd soil” of all Ihe territory now con
stituting Alabama and Mississippi.
The whole right of Georgia, whatever
it was, thus became vested in the
General Government, and so remain
ed until 1819; during which lime not
less than eight of these treaties were
made. Who could then contest their
validity? Are our treaties valid with
the nations in Florida, Arkansas and
Michigan? Can we enter into engage
ments with any tribes within thi
boundaries of the United States,—e-
ven beyond the Rocky Mountains, or
any where upon this continent? Can
we make the solemn guarantee pro
posed by mis bill?—if so, wo are le
gally constrained by our promises to
me Indians ol Alabama made before,
the existence of mat Stale.
But mis is not all. Still another
insurperable difficulty presents itself
to her claims to legislate over and de
stroy the Indian nations.
'ihe following Article is a part of
the fundamental law to which Ala
bama owes her being, and without
which she cannot exist: ‘ The utmost
good faith shall always be observed
towRius the Indians; their lands and
property shall never he taken from
mum without their consent: anil in
tlieir property, rights, and liberty, they
never shall bo invutted or disturbed, un
less in just and la. lul wirs authorized
b'j Congress; but laws founded in jus
tice ancl humanity snail, from time io
tine be made for preventing wrongs be
ing done to them, and Jar preserving
peace and frinutsuip with them' ’
1'liiv was originally u part of. the 4th
Article of the Ordinance respecting
the North Western Territory, and
was by express reference incorporat
ed into the 1st article of the compact
of 18U2, & made a fundamental and
perpetual condition in the Act of
Congress which provided for the ad
mission of Alabama.
What is the answer to all this?
We have it from the gentleman from
Alabama (Mr._M Kiiiley.) The com
pact of 1802, says he, was unconstitu
tional; Georgia could not transfer to
the United States either soil or juris
diction.
If this be so, the first consequence
is, that the dispute between that
Slate and the General Government,
respecting the ownership of the crown
lands obtained by conquest, which
that compact was supposed lo have
happily put to rest iorever, by mu
tual and reciprocal cessions—could
never be settled!
In the next place—that the com
bined powers of the State and ol the
Union, cannot do that, under the con
stitution, which the members indivi
dually might have done without the
constitution. It is an attribute ol
complete sovereignty to be able to
convey and receive territory! It is
insisted that this attribute, as between
the States, is annihilated—. llhough
all powers not granted are reserved
to the members. I will not say that
such an effect could not be produced
by the Constitution, but it is at least
so extremely improbable, that those
who contend for it, in any particular
instance, should be required to show
it clearly, which lias not been done.
It is insisted by the gentleman that
no State can be subject to the re
straining condition of the Ordinance
referred to, because it is inconsistent
with her constitutional equality with
the other members of the Union.
That Ordinance was established in
July, 1787. It declares that, •■The
following articles shall be considered
as articles of compact, between the
original States, and the people and
stales of said territory, and forever re
main unalterable, unless by common
consent.” Then succeeds an article
embracing the clause before read
. iid which was incorporated iiuo the
compact of 1802 The Ordinance
subsequently declares that, “The
said Territory, and the Mates, which
may be formed therein ••shall forever
remain a. part of this Confederacy.”
This Ordinance and all its provisions
was affirmed and established by the a-
doption of the Constitution, and thus
that instrument itkelf contemplated
that all the Slates, to be thereafter
formed North West of the Ohio, should
be forever subject to those conditions;
by which it is now contended, no one
could ever be constitutionally restrain
ed!
It is insisted by the gentleman from
Alabama (Mr. M’Kiuley) that Geor
gia could not transfer soil and jurisdic
tion to the United Stales; that the
compact of 1302. attempting lo do so
was unconstitutional and void; and that
the tract of country, which it was in
tended lo convey, remained a part of
that State until the year 1819.
If the Gentleman’s doctrine is cor
rect, it remains so still; she having
never conveyed it.
Another consequence, Mr. Presi
dent, would flow from this doctrine,
which I should exceedingly deplore; it
is, Sir. that Alabama is not a member
of this Union! By the Constitution no
new State can be formed or admitted
into the Umon within the limits of an
old one. without the consent of the
latter. Now, Sir, Georgia has never
consented to the admission of Alabama,
except by the transfer of soil and ju
risdiction by virtue of the compact of
1802. If that conveyance was inop
erative no consent has been given. If
that compact was absolutely void, as
the gentleman contends, it is a legal
nullity, and he can hold no rights un
der it.
Congress, too, have never given
their consent, except upon the basis
ot the binding efficacy . of that com
pact, and upon the express condition
that its requisitions should be the fun
damental law of the new State.
But, says lire gentleman, Congress
had no power lo pass such a law. If
so, the Act respecting the admission
ol Alabama was unconstitutional and
void, and neither created nor admitted
any new Stale.
The ingenious gentleman has rea
soned so profoundly upon constitutional
law that he lias argued himself ancl
his colleague out of their seats in this
Senate!.—Now, Sir, against this, I
most seriously protest—they cannot
be spared--we need the aid of their
talents and experience.
llow will the gentleman escape
from the consequences which I have
deduced? Will ho contend that the
compact aud the law were valid and
invalid al the same time? That
they conferred rights but could not
impose obligations upon his State?
Even if sucii an extraordinary posi
tion were assumed—how would it
affect the present question? If be
can infuse any degree of vitality into
that which was dead before Us birth,
if lie can make that compact effica
cious as the consent of Georgia to- Al
abama "s becoming a Slate, would it
not also be effectual as her consent
that the United States should exercise
juiisdiction over the territory so far
as to make treaties with the Indian
tribes? If then the gentleman will
admit that Georgia assented to any
tiling, by virtue of that compact, she
consented to the formation of these
treaties, and thus they were valid by
tier authority before Alabama was
brought irto being.
As a dernier resort, the gentleman
insists that the true construction of the
language of the Ordinance gives all
tlie l ight over the Indians for which
his <Slate contends, because the lat
ter clluise requires that “laws”—
• shall from time to time be made for
preventing wrongs being done to them,
and for preserving peace and friend
ship with them ”
That is, hivvs restraining the whites,
our own citizens, from encroaching,
upon the natives and thereby en
dangering the public tranquillity. If
Maine or New York seould pass laws
for “preventing wrongs being done to”
the Canadiiiis, “and for preserving
peace and friendship with them”—
w ould that give jurisdiction over the
Biitisli provinces? But let us read
tin? whole clause, the t lire const ruc
tion of which confers this unlimited
power.
“The utmost good faith shall al
ways be observed tow ai d the Indians;”
—which mean’s that we may violate
all our engagements at pleasure!—
“their lands and property shall never
be taken from them without their
consent,”—that is, both may be taken
by violence against their utmost re
sistance!— !! h» tlieir properly, lights,
and liberty they shall never be invad
ed or disturbed unless in just Slid
lawful w ars authorized by Congress ”
There shall be laws for
preventing
wrongs being done to them and for
preserving peace and friendship with
them;”—the true construction of all
which is — that a State* may make war
upon them at pleasure—-deprive them
ol tlieir lauds—and annihilate their
nation! To such arguments are gen
tlemen ol great ability compelled to
resort!
l'he rights of the natives, both nat
ural and conventional have been stren
uously denied. What right it is asked
have the Indians lo the lands they oc
cupy? 1 ask, in reply, what right
have the English or the French, the
Spaniard or the Russian to the coun
tries they inhabit?
But it is insisted that the original
claim ol the natives has been divested
by the superior right of discovery.
I have already shown that this gives
no ground of claim as against the dis
covered, that it is a mutual understand
ing or conventional arrangement enter
ed into, by the nations of Europe, a-
mongst themselves lo define and regu
late their respective claims as dis
coverers in order to prevent interfer
ence and contests with each other, all
agreeing that the sovereign who should
tust Und a new country should be left
without iiiterterenee from them lo
deal with it and its inhabitants, accord*
■-gto his ability and his conscience. •,
But we are told, that grants front
the king are the highest title, and.
have always been relied upon as such.
1 rue as against other grantees from
the crown, or against the government
itsell; but not as lo the natives. If
such a title gives any just claim as.
against them, then they are bound to
yield to it: lor to every light apper
tains a corresponding obligation.
Were the aborigines bound to yield
to such pretensions? Suppose that,
more than two centuries ago, when in
unbroken strength they held resistless,
sway over this whole western world,
a royal patentee, with his handful of
followers, just landed on. these shores,
should have found himself in the midst
of a powerful Indian nation—the coun
cil lire is lighted up, and sachems and
warriors are assembled around it—
lie presents himself, and says to
them—
“ibis country io no longer yours.
^ ou must leave the forest where you.
hunt, and the valleys where you live.
All the land which you can see from
the highest mountain is mine. It ho*
been given me by the king of the white
men across the waters. Here is his
grant-how canyon resist so fair a ti
tle?”
If they deigned any other reply
than the war-whoop, tlieir chief might
say—
“The Great Spirit, who causetli
the trees to rise from the ground to
ward the Heavens, and uiaketh the
rivers to descend from the mountains,
to the valleys—who created the
earth itself, and made both the red-
man and the white man to dwell
thereon—gave this land to us and to
our ancestors. You say you have a
grant from your king beyond the wa
ters—-we have a grant from the King
of kings, who reigns in Heaven—-by
this title our fathers have held, i't for
uncounted generations., and by this ti*
tie their sous will defend it.”
RELIGION AMONG THE CHOC
TAWS.
Extracts from the journal cf JVlr. Wil*
hams at Jli-ih-lmn-iui.
The characters of some of the con"
verts in the neighborhood of Ai-ik-hun"'
na w ere described at p. 321, of the
last volume, borne of those persons
are referred to in the extracts to be in
serted here. In no manner can the
friends of missions better acquire a
knowledge of the character, extent,
and results of the religious awakening
in the Choc, aw nation, than by such
descriptions as these, of the appear
ance ol individuals and neighborhood.
“July 7, 1829. At a late meeting in
the Chickasaw nation, Tahokn, from
this place was present, and took a
part in the public exhortation and
prayer, as be was called upon. He
appeared to be very spiritual, and all
look knowledge of him that he had
been with Jesus. He told the people
that he came not lo them os a learned
man, or as a good man, or as an angry
man; nor in pride, or for money, no,
not a penny: but he came to hunt for
poor lost souls. lie felt, and made
others feci too, that Christ, and heav
en, and hell, were not terms without
signification.
21. Tnliaka called this evening
“to beg,” as he said, “iani a beg
gar at any rate, and am now upon that
business. I want some instruction
upon these words which I have heard,
from the good book, ‘Except a mart
be born of water and of t!:« Spirit,
lie cannot enter into the kingdom of
God.’ I have been meditating upon
it to day, while at work in my fields
anil though 1 hope I know what it is lt»
be born of the Spirit, yet as I do not
know what it is to he born of water-,,
I came to ask you.” I trust that I watt
ensbled lo give him the sense of the
passage, and (lie “beggar” went away
rejoicing to his woik again.
27. Received a letter from A. IL
one of our neighbors, w ho was once in
Elliot school, but dismissed for impro
per conduct. He has been much ham
dened in sin, and stoutly resisted con*
viction until of late. This letter is
written in Choctaw, and expresses Uis
full determination no longer to neg
lect the great salvation. Accompany*
ing the lettei was a request for me to
call upon him if possible. I accord
ingly did so, and found him under a
peach tree, with his little stools, his
Bible, and writing implements, eou