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still more importance, i ho slrou;
liaiiJ m government was interposed
t« i-Hilr.no 1 lie disorderly and lican-
tia.is from intrusions into their coun
try, from encroachments on their
lands, and from those acts of violence
which ivere often attended by recip
rocal murder.. The Indians perceiv
ed in this protection, only what was
b -uofioial to themselves—an engage-
01 • it to punish aggressions on them.
It involved practically no claim to
their lauds, on dominion over their
persons. It merely hound the nation
to the British orown. as a dependant
ally, claiming the protection of a
powerful friend and neighbor, and re
ceiving the advantages of that protec
tion, without involving a surrender of
their national character.
This is th6 true meaning of the
stipulation; and is undoubtedly the
a 'iiiii in which it was made. Nei-
t ic- the British government, nor the
Chernkees, ever understood-it other-
W se.
T ic same stipulation, entered into
with the United Slates, is undoubted*
ly u in* construed in the sa ne man
ner.. They receive the Cherokee
nation into their favor and protection.
The Cherokees acknowledge them
selves to he under (he protection of
the United States, and of no other
l*o'wer. Protection does not imply
the destruction of the protected.—
Til' manner in which this stipulation
was understood by the American gov
ern neot, is explained by the language
and acts of our first President.
The fourth article draws the boun
dary between the Indians and the cil
iaens 0* the United States. But, in
describing this boundary, the term
“allotted,” and the term “hunting
ground” are used.
Is it reasonable to Slippage, that the
India w who could ant write, and most
probably child nut read, who certain
ly were not critical judges of our lan
guage, should distinguish the word
“allotted” from the words “marked
but.” The actual subject of con
tract was the dividing line between
the < wo nations, and their attention
lb-y very well be supposed* to have
•-been confined to that subject. When,
in fact, they were ceding lands to the
U ct* d’S'ates, and describing the ex
ten? of their cession, it mav very well
be supposed that *liev might not tin-
demand the term employed, as indi
cating iJha* instead of granting thev
were receiving lands. If the term
fvouni admit oT no ofoer sigmh'at on,
which is not conceded, its being mis-
undersio 'd is so apparent, results so
a ■ -ssorilv trom the whole trartsao
•ion, that it must, we think be taken
in the sense in which it was most ob
viously .used.
So w»th respect to the words
.‘‘huntinggrounds ” Hunting avos at
that lime the principal .occupation of
gh« Indians, and their land was more
used for that purpose than for :*ny
■other. It could not, however, be
supposed, that any intention existed
of restricting the full use of tho lauds
thev reserved.
To the United States, it could be
a matter of no concern, whether their
whole territory was devoted to hunt
ing grounds, or whether an occasional
corn fieid^ interrupted, aud gave some
Variety to. the scene.
r l , li jr, trim* l,oi) lionn u,i it in ‘liuir
treaties with Great Britain, and li d
never been misunderstood. They
had never been supposed to imply a
right in the British government to
take their lands, or to interfere with
their internal government.
The 5th article withdraws the pro
tection of the United States from any
citizeh who lias settled or shall set
tle on the lands allotted to the Indi
ans, for their bunting grounds; and
stipulates that, if he shall not remove
Within six months, the Indians
punish him.
The 6th and 7th articles stipulate
for the punishment of the citizens of
either country, who may commit of
fences on or against the citizens of
the other. The only inference to he
drawn from them is, that
and managing all Iheir affairs, a» they [character, and submitting at sub
jects to y|ie taws of v master.
The thud article contains n per
fectly equal stipulation tor the surren
der ut' prisoners.
The fourth article, declares, that
. it ink proper.
To construe thi* expression “man
aging all their affairs,” into 9 surren
der of self-government, would be,
We think, a perversion of itieir neces-
‘ ^PeparturP horn
■sary meaning,
and!
in ay
the construction, which has.been um-
y put on them: The'great sub-
if the aiticle is the Indian trade.
The mfliieuco it gave, made it desi
rable that Congress should possess it.
The Commissioners brought forward
ihe claim, with the profession that
their motive was, “the hem fit and
comfort of the Indians, and the pte-
vention of injuries or oppressions.”
I’his may be true, ns respects the
regulation of their trade, and as re
spects the regulation of all affairs con
nected with their trade, hut cannot
be tvue, as respects the management
of all'their affairs. The m>st impor
tant ol these, is the cession of tlipir
lauds, and security against intruders
! 0 • tlmm Is it credible, that they
could have considered themsolves as
surrendering to the United States tho
right to dictate their fuiure cessions,
and the tea ms on which they should be
made? or to compel their submission
to the violence of disorderly and li
centious intruders? It is equally
inconceivable that they could have
supposed themselv s, by a phrase
lints slipped into an article, on anoth
er and most interesting subject, to
have divested themselves of the right
of self-government on subjects not
connected with trade. Such a meas
ure could not be “for their benefit
and comfort,” or for “the prevention
of injuries and oppression.” Such a
construction would be inconsistent
with the spirit of this and of all sub
sequent treaties: especially- of those
articles which recognize the right of
the Cherokees to declare hostilities,
and to make war. It would convert
U trea.v of peace convert ly into an
et, annihilating the political existence
o' one of the parties. Had sucll a
result been intended, it would have
been openly avowed.
This treaty contains a few terms
capable of being us >din a sense which
could not have been intended at the
time, and which is consisent with the
practical construction which has al
ways been put upon them; but iise*
sential articles treat the Cherokees
as a nation capable of maintaining the
relations of peace and war; and ascer
tain the boundaries between them ami
the United States
The treatv of Hopevyell seems riot
10 nave-established a solid peace. 10
accommodate the differences still.ex
isting between the State of Goorgia
and the Cherokeemalion, the treaty
of Holston was negotiated, in July,
1791. The existing Constitution of
the United States hail been then a-
.loptcd, and the Government, having
more intrinsic capacity to enforce its
just claims, was perhaps less tiii“d-
f'll of.higu cjMv.rioo do no
ting superiority. We hear no more
■of giving peace to the Cli-rokess.
The mutual desire of establishing
permanent peace and frion ’ship, and
of removing all causes of war, is hon-
esilv avowed, and, in pursuance of
this desire, the first article declares,
that there shall be perpetual peace
and friendship between all the citizens
of (lie UniteilStates of America, and
nil the individuals composing the
HlirroL-oo nation
The second article repeats the tin
portant acknowledgement, that the
Chdrokee nation is under the protec
tion of the United States of America,
and of no-other sovereign whatsoev
er.
The meaning of (his has already been
explained The Indian nations were,
from llieii situation, necessaiily de
pendent on some foreign potent fe for
tho supply of their essential wants,
and for their protection from lawless
and injurious intrusions into their coun
try. That Power was naturally
termed their protector. They had
been arranged under the protcli.m of
Great Britain; but the extinguishment
of the British power' 111 their neigh
borhood and the establishment of that
of the United Slates in its place, led
“the boundary . between the Uniied
States and the Cherokee nation shall
be as .follows: Beginning, 1 ” ltd.' We
hear no more of “allotun hts” or ol
“hunting grounds.” A boundary is
described,, between nation and nation,
by mutual consent The national
character of each, the ability of each,
to establish this boundary, is ae-
knowlepged by fie other. To pre
clude forever fill disputes it is agreed I
that it shall "h« plainly maj ked by j
commissioners, to be appointed by 1
each party; and ip order to extinguish j
la j 111 of the Clirroke.es to:
ulation e? their conduct in tfte djs- ]
charge o their duties.” I
Thi* act avowedly contemplate#
preservation ol the ^Indian nation# os
an object sought by the United
Slates, & propose# to effect this ob
ject by civilizing and converting them
from hunters into agriculturists.
Though the Cherokee# had utrendy
made considerable progress in this
improvement, it cannot be doubted
that tile general woitls of the act
comprehend them. Their advance
in the “habits of civilizati&n,” lather
encouraged perseverance in the lau
dable exertions still larlher to meli
orate, their condition. This act fur
tushes strong additional evidence of
a settled purpose to fix the Indians
in their country by giving them secu
rity at home.
The treaties and laws of the Uni-
forever nil t .
the ceded lands, aiiaddifional consid-l
cation is to he |iai% .the-Coiled S. j ted State# contemplate the Indian
ten iloiy as completely separated
trom that of any States; aud provide
II intercourse with them shall
For this additional Von#ideration the
Cherokees release all t ight to tin ec
ded land, forever. ^ ! tliwt oil intercourse
By the fifth article, the Cherokees be carried on ex lusively by the Gov-
-■* ~ * ■" ‘ eminent of the Union.
Is this the rightful exercise of pow
er, or is it usurpation'?
While these Stales were colonies,
tins power, in its inmost extent, was
admitted to reside in the crown.—
When our Revolutionary struggle
commenced, Congress was composed
allow the U. States a\r.oad through,
their country, and the jnavigation of j
the Tennessee River, \ The accept- j
ance of those sessions i.^an aeknowl- j
edgmont 0! the light of jlie Cherokees
to make or withhold (Ink.
By the sixth article it is agreed, on
the part of the Cherokees, tlyit the
United States shall have the sole and ; of an assemblage ol deputies acting
exclusive right, of regelating their j under specific powers granted by the
Jiation.
Tho 9th article is in these words:
*‘Fo. the bmwsfir and comfort of the
Indians, and for the prevention of in- Uni'
Juri • or oppressions on the part of
the citizens or Indians, the United
States, in Congress assembled, shall
part of the Cherokees,
were- under the protection of (ha
United Stnlcs. and of no* other Poiycr.
Thei^ssuuied the relation with (ho
itM^States whicfi lirulbeforc suhi
sisfed with Great Britain.
This relation wa9 that of a nation
claiming and receiving the protection
have the tote and exclusive right of of one. inure powerful; not that of in-
regulatwg the trade with the Indians, 1 dividuqls abaiidouing their national
trade. No claim is^isnde to the
“management of all thpir affairs.
The stipulation has already been ex
plained. The observation may. be
repeated, Cat Ihe stipulation is itself
an admission of their right to make
or refuse it.
By the seventh article, the United
Sfates solemnly guaranty to the Clier-
ok'eti nation all their lands not hereby
ceded.
The eighth article relinquishes tn
the Cherokees any citizens of the U
hited States who mav settle on their
lands, and tho ninth forbids any citi
zen of ho United States to hunt on
their lands, or to enter their country
without a passport,
The remaining articles are equal,
and contain stipulations which would
he made only, with a nation admitted
to he capable of mu laging itself.
This treaty, thus explicitly recog
nising the national*'- character of the
Cherokees,.-and their right of self-
government: thus guarantying their
Funds; Hssumire the. duty of protec
tion, and. of. course pledging the faith*
otl he United States "far that protec
tion. has --been tYl£quHi?tly renewed,
and is now in full force.
To the general pledged of protection
bare t been added several specific
pledges,-deemed valuable by the In
dians. Some of those restrain the
citizens of the United Sfhtes from
encroachments 911 tho Cb- -fcee coun-
*7y, and provide IC ll|e pmusljmciif of
intruders.
From the commencement of our
Government, Cong!es? passed acts to
regulate the trade and intercourse
with the Indians, which treat them as
nations, respect their rights, and
manifest a firm purpose to afford that
,prot.ee* ion w!iieh*Tientie« stipulate.
All these acts, and especially that of
1802, which is still in force, manifest
ly consider the several Indian nations
us distinct .political communities,
having territorial bbuudnncs, within
which their authority is exclusive,
and having a right lb all the lands
within these boundaries, which is not
only acknowledged, but guarantied by
the United States,
In 1SI9, Coilgress passed an acl
for promoting those humane designs
of civilizing the neighboring Indians,
which had long been cherished bv
the Executive. It enacts, “that^fo:
the purpose of providing against tilt*
further decline and final extinction o*
the Indian tiibes adjoining to the Iron
tier settlements of the United States
and for introducing among (hem tin
habits and arts of civilization, the
President of the United States shall
be, and he is hereby, authorized in
every case where ,.he shall judge-im
provement in the.habits and condition
of such Indians practicable, and that
the means of instruction can he intro
duced. icith their aien consetti, to em
ploy capable persons of good moral
character; to instruct them in the
mode of ngVicultttr®' suited to Their
situation; and, for teaching their chil
dren in reading, writing, ond artlime-
tic; and for performing such other in
struction aud rules as tho President
Colonies to be ludepen <tni. * | 0 prove her oc&niesienci
Without any vvrjlteu tlcfim universal conviction, that the lui
nations possessed a full right to
lands they occupied, until that
should he extinguished by the U1.1
States, with their consent*; thattl
tenitory was separated from (It!
any State, within, whose cliorti
limits thev might reside, by n In
dary lini, established by (real
that, within their boundary, they
sessed rights with which no Stfl
could interfere:, nnd that the
power of regulating the intereel
with them, was vested in the Hi
States. A review of those acti,
the part of Georgia, would off
too much time, and is the les* ne<
sary, because they have been
lately detailed in the argument
tho bar. * Her new series e#*
Legislatures, or convention of the
several colonies. It w as a great pop
ular movement, not perfectly organ
ized, nor were the respective pow
ers ol thosn who were entrusted with
the management of affairs accurately
defined. Tho necessities of our sit
uation produced a general conviction
that those measures winch concerned
all, must bo transacted by a body in
which lIni representatives of all wore
assembled, and whidh could command
the confidence ol all; Congress there
fore w ns considered* as invested with
all the powers of war and peace, and
Congress dissolved our cannexion with
thw mother country & declared these
United
States.
tioo of powers, they emp|oye<i d’V.;o.
niatic agents to represent the \jniied
States at the several Com; rs of Eu
rope; offered to m-gri^ty treaties
with them, and did at Vuallv negotiate
treaties with Fy<mcc. From tlic
same necessity, and on the s:»mc prin
ciples. Congress assumed the man
agement or Indian affairs; first in the
oi-psc of tlu-ic United Colonies, and
afterwards in the name of the Uni
ted States. Early aUempts were
made at negotiation, and to regulate
trade with them. These not prov
ing successful, war was rallied on
under the direction and with the for
ces of the United States, and the ef
forts to make peace by treaty were
earoust nnd incessant. The Confed
eration found Congress in the exar-
. ' ** -
CISC 01 iiMv.aanin ». r0 „,. o „„„
war, in our re.lat 1011^ with Indian na
tions, as with tliosn oyEurope. Such
was the state of things, when the con
federation was adopted. That in
strnment surrendered the powers of
peace and war to Congress, and pro
hibited them to the States,'res >ec-
tively, unless a State be actually in
vaded, ‘,or shall have received cer
tain advice of a resolution being form
ed by some nation of Indian^ to in
rade such • State, and the danger is
so imminent as not to admit of delay
till the United States in congress os
semblet^ can be consulted.” Tjkis
instrument also gave the right of
“regulating the trade and managing
ill the affair* with the Indians not
members of any of the States: Provid
ed, That the legislative powei of any
State within its own limits be not in
fringed or violated.”
The pmbigiious ptirnses which fol
low the grant of power to the
United States, was 4 so so con-
trued hy the State* of Nor tl^ Ca roll-
na and Georgia, as totinn il the power
itself. The discontents and confusion
resulting from these conflictingc.jaims.
produced representations to Congress,
which were referred to a Committee,
who made their report in 1787 .The
report does not assent to the con
struction of the two States, but re
commends an recommodation, bv. lib
eral cessions of territory, or.by nn
admission on their part, of the pow
ers claimed by Congress, The cor-
rect exposition of this article is ren
dered iinnt^essary by the adoption of
our existing construction That.in
strument confers on Congress ih' 1
treaties and of regulating commstq
with foreign motions, «nd amongt^
several States, and the the. '
tribes. Tl?c e powifts compr**,
pH that is required for the regulatit
of our intercvH^i so with the Imliat
They j[i*e - not limited by any restrlo
lions on their tix*e actions. Thi
shackles imposed on this power j
the confederation,:are discarded.
The Indian nations had cl ways be,
considered as distinct, iitilpjiehdaj
political communities, retainingitcj
original natural rights, as the ini
puled possessors of tjlie • sbi|. f rc j
lime immemorial, w ith the sin-lt!(
cbption of (hat imposed by irresisijj
ble power, which excluded tl^
from intercourse with any other ]
ropcan potentate than the first 1
eoverer of (Ite coast of the'partitj
lar region claimed: and this \vai|
restriction which these* Europa
potentates imposed on thcniselve^j
well as on the Indians. The vcj
term “nation,” so generally appi
to them, means “a People distioi
from othersi” The constitution, |[
declaring treaties already made,)
well U3 those to be made, to be l
supreme law of (he land, has
and sanctioned the previous treatij
with the Indian nations, and, con
quently, admits their rank atnof
those powers who ore.capable, ofn
king treaties. The words ‘‘trealjl
nnd “nation,” are w.jrds of ouro#
language, selected in our di|«loou|
and legislative proceedings, by <
selves, having such a definite
well understood meaning. We ht|
applied them tolndiansas wo havei
plied them to the other nations oil
earth. 'I'ie; are applied to all iniT
same sense.
Georgia, hersejf, has furnishedt
elusive evidence that lier fon
opinions on this sihjc.ct ooncutii
with those entertained by. I>ti suj
States, and by the. o|'j
United Stall#. Various acts of I
Legislature Inave been cited a|
aiguni'ni, including, the coi.irr.iil
cesstic., made hi |p|ie year 1802.1
.y give and prescribe for the reg-j powers and war of peace; tf making
uiomiosting her abandonftifcut of.lN
opinions, appestvs to have coaiotctj
in December 1828.
In opposition to this 01 iginartal 1
possessed by the undisputed occupd
of every country, to this recognil
of that right, which is evidenceil|
our history, in every change tin
which we have passed, is placed!
charters granted by the monarcll
a distant and distinct region, parcT
ling out a territory in possessio
others, whom he could not rernfl
and did not attempt to remove, 1
the cessions made of his claims by!
treaty bf peace.
The actual state of things at
time, and all history since, exp
these charters; and tho King ofG'j
Britain, at the treaty of peace, ro
cede only what belonged to Itis croq
These nenly asserted titles can
rive no aid from the articles so oil
repeated in Indian treaties, extej
ing to them, first the protection!
Great Britain, and afterwords tliat|
the United Stales. Those artid
fire associated with ojhcrs, rcco
zing, their title to self government!
The very fact of repeated troflll
with them recognizes it; and th"
tied doctrine of the law of nation#)
tlint 0 weaker power does not surri
der its independence—its rigl'
self government; by associating <v|
a stronger and takuv* its proieotij
A weak state in ordor to provide
its sufety, may.place itself under!
protection of one more powerful,."‘*1
out stripping itself of the right of ?<(
eniimnt, .-.nd ceasing to Im a St#l
Examples nf this kin^nrjc- net n'M
ing in Europe. “Tributary i nd fe-j
itory States (6avs Vnttej,) do
thereby cease t« he toveroigii