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FEDERAL UKlfliS.
inquire into the effect of the particular statute
and section on winch the indictment is founded.
It enacts, that “ all white persons residing with
in the limits of the Cherokee nation on the first
day of March next, or at any time thereafter,
without a license or permit from his Excellency
the Governor, or from such agent as his Excellen
cy the Governor shall authorize to. grant such por
trait or license, and who shall not have taken the
oath hereafter required, shall be guilty of a high
•Misdemeanor, and upoa conviction thereof, shall
“j punished by confine mem to the Penitentiary, at
hard labor, fora term not less than four years.”-*
The 11th section authorises the Governor,
“should he deem it necessary lor the protection of
the miues, or the enforcement, of the laws in force
within tlie Cherokee Nation, to raise and organize
a guard,” Sic.
The 13th section enacts, “ that She sam guard,
or any member of them,^haIf he, and they are
hereby, authorized amjKempowered to arrest any
person legally charged with or detected in a viola
tion of the laws of this State, and to convey, as
qnon as practicable, the person so arrested, belbre
n justice of the peace, judge of the superior, or
justice of inferior court .ot this State, to be dealt
with according to law.^tk
The extra territorial pdwer of every Legisla
ture being limited in its action, to its own citizens
or subjects, the very passage? of this act is an as-
serLion of jurisdiction- over the Cherokee Nation,
and
d.etion.
rights and powers consequent on juns-
The same power, in the same words, is conferr
ed on the Government of Rhode Island.
This power to repel invasion, and, upon just
cause, to invade ami destroy the natives, author
izes offensive as well as defensive war, hut only
“ on just cause” The very terms imply the ex
istence of a country to be invaded, and of an enemy
who has given just cause of w ar.
The charter of William Penn contains the foU
! ouring recital: “and because, in so remote a coun
try, near so many barbarous nations, the incur
sions, as weil of the savages themselves as of oilier
enemies, pirates, and robbers, n ay probably be
ieared, therefore we have given, &c. The in
strument then coolers the power of war.
These barbarous nations whose incursions were
feared, and to repel whose incursions the power to
make war was given, were surely not considered as
the subjects of Penn, or occupying his lands during
his pleasure
charters she had granted ; she considered them as
c. pable of maintaining the relations of peace and
war; of govejrning*hemselves, under her protec
tion ; and she made treaties with them t|:e obliga
tion of which she acknowledged.
This was the settled state of things when the
wr r of our Revolution conr xnecced. The influence
of our enemy was established , her resources en
abled her to keep up that influence : and the colo
nists had much cause for the apprehension
the Indian nations'would, a$ the allies of Great |
Britain add their arms to hers. This, as was to
be expected, been me an object of great solici
tude to Cogress. Far from advancing a claim to
their lands, or asserting any right of dominion
over them, Congress resolved *‘that the securing
and preserving the friendship of the Indian nations,
appears to be a subject of the utmost moment to
those colonies.”
The early journals of Congress exhibit the most
The same Clatise'is introduced into the charter of! anxious desire to conciliate the Indian nations.—
Lord Baltimore. There Indian departments were established; and
The charter to Georgia professes to be granted commissioners appointed in each, “to treat with
for the charitable -purpose of enabling poor subjects j the Indians in their respective departments, in the
to gain a comfortable subsistence by cultivating! name and on behaii of the united colonics, in order
lands in the American provinces, “at.present waste j to preserve peace and friendship with the said In-
and desolate.” It recites, “ and whereas our provin-! dians, and to prevent their taking any part in the-
ces in North America have been frequently ravag- j present commotions.” •*
ed by Indian enemies more especially that of South j The most strenuous exertions were made to pro-
Carolina, which in the late war, bv the neighbor- j cure those supplies on which Indian friendship was
ing savages, was laid ".vast by fire and sword,and [supposed to depend, and every thing which might
great numbers ofthe F.ngHsh inhabitants miserable j excue hostility was avoided,
massacred ; and our loving subjects who now in-! I he lirsf treaty was made with the Delawares,
Alter Ivin"* concealed lor a series of ages, the accomplished by conciliating conduct, and good
niternrisfi of Euro
conducted some ol
op."^guided by nautical science, {example;n^t by extermination,
f her adventurous sons into th ; s j The actual state of things, an.
1 the practice of
Western world. They found it in possession of a European nations, on so much of the American
neop’e who had made small progress in agriculture j continent as lies between the Mississippi and the
and of the rest of the world,' having institutions j incompatible with the lofty ideas of granting the one or either of the. contracting parties against the
of their own, and governing themselves by their j the soil, and all its inhabitants, from sea to sea.— other, h-e mutually forgiven, and buried in the depth
own laws. It is difficult to comprehend the pro-j They demonstrate the truth, that these grants) of oblivion, never more to be had in remembrance,
position, tint the .inhabitants of either quarter of asserted a title against Europeans only, and were] “ 2d. That a perpetual peace and friendship
the globe could have rightful original claims of considered as blank paper, so far as the rights ot j shall, from henceforth, take place-anu subsist be-
dotriinion over the inhabitants ofthe other, or-the natives were concerned. The power of war is tween the contracting parties aiorsaid, through all
succeeding generations: and if either ofthe parties
are engaged in a just and necessary war, with any
other nation or nations, that then each shall desist
the other, in due proportion to their abilities, till
their enemies are brought to rcasonaole terms of ac
commodation,” &-0.
3d. The third article stipulates, among other
things, a free passage for the American troops
though the Delaware nation, and engages that
they shall be furnished with provisions and other
necessaries at their value.
“4th. Forthe better security of the peace 4* friend
ship now entered into by the contracting parties
against .all infractions of the same by the citizensol
either party, to the prejudice of i he other, neither
party sliall proceed to the infliction of punishment
on the citizens oftheroiher,otherwise than by seou-
or
i par-
hot h
turens? -1 minion over their persons, their alliance was so; hgt; parties, as near as can be to the laws, customs,
But power, war, conquest, give rights which, | by flattering professions, and purchased lrv rich • and usages ofthe contracting parties, and natural
after possession, are conceded by the world, andpresents. The English, the I* rench and the Span- ; justice, &c. ^ ,
which cun never he controverted by those on I iards were equally competitors for their Irendship 5th\ The Path artie’e regulates the trnuc ne
wborn they descend. We proceed, iben, to the land their aid. Not well acquainted with the ex- i tween the contracting parties, in a manner entire-
actual style of things, having glanced at their act meauing ot words, nor supposing it to be < ly equal.
origin; because holding it in our recollection might j materialwhether theywere called the subjects or ) 6fh. The sixlh arlicle is enliilcd to Fccu.iar
site 1 some light on existing pretensions.
Tue great maritime pow
ed and visited different parts
nearly the same time. The
mouse for any one of them ... — m , _
- to proless
oral Government to whom they belonged^or by! oilier, the extent of that disftoverv was the subject
whom they were commissioned, a right Ail proper- i of unceasing contest. Bloody conflicts a rose he-
fy in the soil, from the Atlantic to the Pacific; or j tween them, which gave importance and srniiri-
rightlul dominion over the numerous people who • ty to the neighboring nations. Fierce and warlike ^ .
or copied it ? Or has nature, or the great Creator iu the character, they might he formidable enensit3, j ring tin offender or offenders, by imprisonment,
of all the things, conferred their rights over him- 'or effective fried*. Instead of rousing tiier resent- i any other competent means, till a fair and imps
tt-r* and flslierTnen, or agriculturists and manufac-‘ments, by asserting claims to their lands, or to do-j tiaI trial can be had bv judges or juries of lx
nt-
Ithe children of their” father in Europe: lavish in | tention, a* it contains a disclaimer of designs which
this protection, only what was beneficial to them
selves—an engagement to punish aggressions on
them. 'It involved practically no claim tp their
lands, no dominion over their persons. It mefely-
hound the nation to the British crown, as a depeiHl-
ant ally, claiming the protection of a powerful
friend and neighbor, and receiving the advantages
of that protectp n, without involving a surrender
of their national c'haractei.
This is the true meaning of the stipulation; and
is undoubtedly the sense in.which it was made.—
Neither the British’ Government, nor the Chero
kee*, ever understood it otherwise.
The same stipulation entered into with the U.
States, is undoubtedly to be construed m the same
manner. They receive the Cherokee nation into
their favor and protection. The Cherokees ac
knowledge themselves to he under the protection of
the United States, and of no other Power. Pro
tection does not imply the destruction of the pro
tected. The manner in which this stipulation was
understood by the American Government, is ex
plained by the language and acts of our first Pre
sident.
The fourth article draws the boundary lx tween
the Indians and the citizens of the United States.
Bur, in describing this boundary, the term “ al
lotted,” and the term “ hunting ground” are used.
Is it reasonable to suppose, that the Indians who
Could not write, and most probably could not read,
who certainly were not critical judges-of our lan
guage, shquld distinguish the word ‘ l alk>tted”
from the words “ marked out.” The actual sub
ject of contract was the dividing line between the
two rations, and their attention may very well be
supposed to have been confined to that subject.-—
and of no other Power. ;They-*s«ane
tion with thfc United States which Ua be
sisted with Great Britain.
* Tin* relapoo was that of a nation
receiving the protection of oJfcjnere
that- ©f individuals abandoning fhejr national d
acter,’and submiting as subjects to the laws
muster® 0 * -■/
The'third article contains a fCrf<CtIy<qi:m rnjft*
la tion lor tie surrender cf f rife* ners. .
'The fourth article declares, that “tie lord: ~r
between the United States and ft^Cherokct nt*
tion shalrtc ae lolier. s:, Ecginnii g. & c. V> < I-car
no more of “alloncents” or ot “kqgtii g gij,irde..,
A boundary is described, between tytien site ra
tion, by mutual constpt. The irfltxirfo chargner-
of each, tie ability of each, to establish this boun
dary, is acknow ledged by the other. To phcii < ! e
forever all disputes, it is agreed^! at it shad be
plainly marked by cemroissioners, tp be appointed
by each party; and, in order to extinguish forever
ail claim of the Cherokees to the ceded lands, an
additional consideration is to be paid by the U mud
States; for this additional consideration the Chero-,
kees release all right to the ceded land, forever.
By the fifilh article, tbe Cherokees a'low the
United States a road through their country, and '
the navigation of the Tennessee River. The ae-^
ceptarce of these cessions is an acknowledgment off'
the right of the Cherokees Unmake or wiihiiold
them.
By the sixth article it is agreed, on the part oF
the Cherokees, that the United States shall have
the sole and exclusive right of regulating their
trade. No claim is mode to the “management of
all their affairs.” The stipulation has already been,
explained. The observation may be repeated.
is iteed an a<1 mission of there
When, in/act, they were ceding lands to the U.
States, and describing the extent of their cession, that the stimulation
it tray very well be supposed that they might not j right td make or refuse it.
understand the term employed, as indicating that; By ihe seventh artic'e, theU. States selfrrrly
instead of granting they were receiving lands. If j guaranty to the Cherokee nation all their lands net
the term would admit of no other signification, I hereby ceded.
the claimants were too powerful to submit to foe
exclusive or unreasonable pretension* of any sin
gle potentate. To avoid bloody conflicts, which
might terminate disastrously to all, it was necessa-
rpr.w mit<M ; mnrHin?S8S5»4S.,{St;S .S’-"’,'
themselves. This principle, suggested by the ac
tual slate of things, was “ that discovery gave
title to the Government by whose subjects or by
whose authority it was made, against all other
European Governments, which title might be con
summated by possession.”*
Tills principle, acknowledged by all Europeans,
because it was the interest of all to acknowledge it,
gave to the nation making ’he discovery- as its in
evitable consequence, the sole right of acquiring
the sot!, and making settlements on it. It was an
'•xc'usive principle, which shut out the right of
competition among those who had agreed to it;
.nBt one which could annul the previous rights of
those who had not ageeed to it. It regulated the
right given by discovery among the European dis
covers s; but c-»u! I not affect the rights of those
already in poss > ion, either as aboriginal occu
pants, o' is occupants by virtue of a discovery
m i le lief »re me memory of man. Il gave the exclu
sive right to purchase, but did not found that right
oa a denial of ihe rigiit ol the possessor to sell.
The relation between the Europeans and the
natives was determined in each case by the
ticular Government which asserted and could main-
which is not conceded, its being misunderstood is
so apparent, results so necessarily fronrthe whole
transaction, that it must, we think, be taken in the
sense in which it was most obviously used.
So noth respect to the words “hunting grounds.”
Hunting was at that time the principal occupation
of the Indians, and their land was more used for
that purpose than for any other. It could not,
however, be supposed, that any intention existed
of restricting the full use of the lands they reserv
ed.
To the United States, it could be a matter of no
concern, whether their whole territory was devot
ed to hunting grounds, or whether an occasional
village, an occasional corn field, interrupted, and
gave some variety to the scene.
These terms had been ut*d in their treaties with
Great Britain, and had never been misunderstood.
They had never been supposed to imply a right
in the British Government to take 1 heir lands, or
to interfere with their internal Government.
The 5lh article withdraws the protection of the
United States from any citizen who has settled or
shall settle on the lands allotted to the Indians, for
their hunting grounds; and stipulates that, if he
shall not remove within six months, the
may punish him
The 6th and 7th articles for the punishment of
the citizens of either country, who mn\ commit
offences on or against the citizens of the other.—
The only inference to he drawn from them is,
that the United States considered the Cherokees
a nation.
The 9th article is in these words: “For the
lcfitand comfort of the Indians, and for the pro-
ition of injuries or oppressions on the part of
with fite internal affairs ofthe Indians, farther Thai
keep out the agents of foreign Powers, who, as tia-
dersor otherwise, might seduce them into foreign
alliances.—The King purchased 1 heir lands when
they were willing to sell, at a price they were will
ing to take; hut never coerced a surrender ofthem.
He also purchased their alliance and dependence
by subsidies; but never intruded into the interior of
their affairs, or interferedpvith thi^rselfgovernrrient,
so far as respected themselves only.
The general views of Great Britain with regard
to the Indians, were detailed by Mr. Stuart, super
intendent of Indian Affairs, in a speech delivered »?
Mobile, in die presence of several persons of dis
tinction, soon after the peace of 1763. Towards
the conclusion he says, “lastly, I inform you that it
is the King’s order to all his governors and subjects
to treat the Indians with justice and humanity, mvl
to forbear all encroachments on the territories allof-
( ted to them; accordingly all individuals are prohib-
i ited irom purchasing any of your lands ;but, ns you
j know, that your white hretheren cannot feed yon
| when you visit them, unless you give them grounds
* par- J to plan, it is expected that you will cede lands to
the King for that purpose. But whenever vou
we-.Mj'pim- privilege m the partscuhr i shell he pW) to si.rre.uler anv of vot.r territories
pisce. r.» Uo.teil State, succeeded to all the {t„ his majesty, it must he done,' lor ihe futon-, at a
i public meeting of your nation, when the governors
ofthe provinces, or the
claims '"f Great Britain, both territorial and polit
rai; hot noaflen.pl, so far as is known, has been-oi lhe provinces, or the superintendent' shall be
mad-- to enlarge them. So far as they existed present, and obtain the consent of all vonr people,
merely in. theo-v, or were m their nature only ex- The boundaries ol your hunting mounds will hear
elusive of the claim* of other European nations, eurMeiy fixe,!, and no setilcmSni permuted to Ire
th-y sltll retain them ongmal character, and re-< made upon them. As von may he assured that ail
mam dormant So far as they hove barn prret,- treaties with vou will bit faithfully kept, so it is ex-
na,ly exerted, they exist m fact, are understood by - peeled that you, also, will he careful strictly to oh-
both parties, are asserted by tne one, and admitted j.serve them.”
by the other. ' . , j The proclamation issued by the King of G. Brit-
; Soon after orcat Britain, determined on plant- ©in, in 1763, soon after the ratification of the nrti-
mgeofomea in America the king granted char-' dea of peace forbids tl ie govurnors of any ofthe
ters to companies of his subjects, who associated j colon iee to grant warrants of survey ; or pass pa-
for the purpose of carrying the views of the crown tents upon any lands whatever which not havU
into effect, and of enriching themselves. The first been ce.^d tr», or purchased by ,. s (the Kin e ) as a-
ot tuese charlert was made before possession was foresaid, are reserved to the said Indians, or anv
Taken of any part of the country. I hey purport
fullest anti most ample manner,
hounded by firmer treaties,
it hntl. i,n, „ i • i ,' ■ Pftt'framn of their nrccssnrv moan-
it hath been rng, and a departure from the O.JBSU iruil.fi, Tvtrtcti
ns the said j has been uniformly put on them. The great sub
head,
representa-
gen< raily to convey the soil, from the Atlantic to
the South Sea. This soil was occupied by numer-
o-jsnqd warlike nations, equally willing and able to
ofthem.
The proclamation proceeds “and we do further
declare it to be our royal wili and pleasure, for the
present, as aforesaid, to reserve, under our sove-
defend i ne.r potions The extravagant and reignly protection, and dominion, for tbe use ofthe
absurd idea, that the feeble settlements on the sea j said Indians, all the lands and territories” “Ivino-
coast, or tne companies under whom they werejto the westward sn„r^ rivers Which
, - * er t hey were j to the westward ofthe sources ofthe ri
hcqcfWtl legit .mute power by t item to gov- j fall into the see, from the west and n.rthwost as a-
ern the peo,,.e .v occupv the lands from sea to sea.J foresaid ; and we do hereby strictly forbid, on pain
did not enter the mind of anv uri-sa-r t ul 7 - J ’ 1 -
chasing such lands as the. natives were willing tof “And we do further strictly enjoin and require
sell, he crown could not! ? understood to grant! ail persons whatever, who have either willfully or
what tne crown did not affect to plaim, nor was it inadvertently, seated themselves upon any other
s° understood # _ ,, lands which not having been ceded to, or purchos-
, The te^ver of making w ar is conterred by iheae od by us, are still reserved to the said Indians, ns
charters on the ^.omes, but defensive war alone aforeaaid. forthwith to remoie themselves from
suemes to have been contemplated. In the first |such settlements.”
charter to the first and second colonies, they are j
empowered,
ter, uxpulse, ‘^t, «•••—— *»• pe™»ns- wnn i - w tiereas many persons, contrary to the positive
without license, attempt to inhabit “w.thm he orders of the King, upon this subject, have undcr-
prucmcis and hm.ts of the raid several colonies, taken to make settlements beyond the boundaries
nn im mo.
_ , A proclamation, issued bv Governor Gage, in
nvered, for then several defmes to ercoun- 11772, contains the following passacro
‘xpulse, repel, and resist, all persons who s«inll, J “Whereas many persons, conirarv t
Raid
or tha’ sh-di enterprise, or attempt at anv time
hereafter, the least detrimentor annoyance of the
said several colonies or plantations.
T ie charter to Connecticut concludes a cvrern!
pparer to make defonsive. war with these terms*
‘ r.ri l upon just ewnen to inuade and destroy the
nances, or other enemies oftl»e said colony.”
Whcuten, 57?. *
fixed bv tiie treaties made with the Indian nations,
which boundaries ought to serve as a bnrrier be
tween the whites and the said notions,” particu
larly on the Ouabnche, the proclamation orders such
persons to quit these countries without delay.
Such was the policy of Great Britain towards
ibe Indian nations inhabiting the territory from
which she excluded nil other Europeans; such her
claims, and such her practical expositions r>T the
nation shall he the
tion in Congress.
This treaty, in its language, and in its provis-
: ms, is formed, as near r.s may he, on The model of
teen ties between tlr.* crmvned heads of Europe.
The sixth article shows how Congress then trea
t’d the injurious calumny of cherishing designs
unfriendly to the political and civil rights of the In
dians.
Di sring the war of the Revolution, the Cherokees
teok parr with the British. Allci its termination,
tlte United States, though desirous of peace, did
not feel it* necessity so strongly as while the war
continued. Their political situation being chang
ed they n ight ver\ well think is advisable to as
sume a higher tone, and to impress on the Chero-
kees the same respect for Congress which was be
fore toil for the King of Great Britain. This may
account for the language of the treaty of Hope-
wed.—There is the more reason for supposing that
the Cherokee chiefs were not very critical judges
of the language, from the fact, that everyone make
his mark; no eheif was capable of signing his name
It is probable the treaty was interpreted to them
The treaty is introduced with the declaration
Ihfit “The commissioners plenipotentiary of the
United States give peace to all the Cherokees, and
receive them into the favor and protection of the
United States of America, on the following condi
tions.”
When the Uni v 'd States gave peace, did they
no! also receive it? Were not both parties desi
rous of it? II we consult the history of the day,
does it not inform us that the United States were
at h ast as anxious to obtain it as the Cherokees?
We may ask, further: Did the Cherokees come to
the seat of the American Government, to solicit
peace; or, did the American commissioners go to
them to obtain it ? The treaty was made at
Hopewell, not at New York. The word “ give,”
then, has no real importance attached to it.
The tiret and second article stipulate for the mu
tual restoration ol prisoners, and arc of course e-
qual.
The tbrid article acknowledges the Cherokees
to be under the protection ofthe United States of
America, and of no other Power.
This stipulation is found in Indian treaties, gen
erally. It was introduced into their treaties with
Groat Britain; and may probably be found in those
with other European Powers. Its origin may be
traced to the nature of tlieip connexion with those
Powers; and its true meaning is discerned in their
relative situation.
The general law of European sovereigns, res
pecting their claim in America,” limited the inter
course of India ns, in a great degree, to the particular
potentate, whose ultimate right of domain was ac
knowledged by the others. This was the general
state of things in time of peace. It was some
times changed in war. The consequence was,
that their supplies were derived chiefly from that
nation, and their trade confined to it. * Goods, in
dispensable to their comfort, in the shape of pre
sents, were received from the same hand. What
was of still more importance, the strong hand of
Government was interposed to restrain the disor
derly and licentious from intrusions into their coun
try, from encroachments on their lands, and from
those acts of violence which were ufien attended*
by reciprocal murder. The Indians perceived in
the prevention of injuries «r oppression.” This
may be true, as respects the regulation of their
trade, and as rcspecls the regulation of alf affairs
connected with their trade, hut cannot he true, as
respects the management of ail their affairs. The
most important of these, is the cession of their
lands, and .security against intruders on them. Is
it credible, that they could have considered them
selves as surrendering to the United States the
right to dictate their future cessions, and the terms
orkAvhieb they should lie made? or to con^pe! their i into agriculturists
submission to the violence of di orderly and liccn- ’
tious intruders? It is equally inconceivable that
they couid have supposed themselves, by a phrase
thus sjmped info an artic’e, on. another anil most
interesting subject, to have divested themselves o.
the right ol sell-government, on subjects not * n-
nected with trade. Such a measure could not he
“ for their benefit and comfort,” or for “ ihe pre
vention of injuries and oppression.” Such a con-
atruction crnuM Vw* n-»c
The eighth article relinquishes to tlr Cherokees;
any citizen of the United States who may settle ovi
their landR, and the ninth forbids any citizen fcfth»
United S’ates to hunt on their lands, or to elites
their country withotrT^passport.
The remaining articles are equal, and rentaiti
stipulations which would he made only with a na
tion admitted to be capable of governing itself.
This treaty, thus explicitly recognising the na
tional character of the Cherokees, and their right:
of self-government; thus guarantying their lands;,
assuming the duty of protection, and <*f course,
pledging the faith of the United States for that pro
tection; has been frequently renewed, and is now
in full force.
To the general pledge of protection hare hem
added several specific pledges, deemf.l valuable by
the Indians. Some of theee restrain ibeoitiTcrs of
the United Statcsfrom encroachments e« the Cher
okee country, and provide for the punishment of
intruders.
From the comniorcement of our GovernmenT,
Congress pasted acts to regulate the trade and in
tercourse with the Indians, which treat, them s;i
nations, respect their rights, and manifest a firm
Indians j purpose to afford that protection which trea ts
stipulate. All these acts, and especially that of
1802, which is Still in force, manifestly consiff-r the.
several Indian nations as distinct polit‘cal commu
nities, having territorial boundaries, within which,
their authority is exclusive, and having a right to
all the lands wilhin these boundaries, which s rot
only acknowledged, but guarantied by the United
Stater.
In 1819, Congress passed rn act for promoting
those humane designs of civilizing the ncigbloT-r-g
Indians, which had long hern cherished by the Ex
ecutive. ft enacts “(hut, Ot the purpose of provid
ing against the further drclinq and £nn! extinction
of the Indian tribes adjoining to the frontier fet'Je-
ments of the United Stales, and for introducing
among tlrem the habits and arts of civiliza'lcn, the.
President of the United be, nr.d he is.
hereby, authorized, in every ease where he shall
judge improvement in tbe habits and condition of
such Indians practicable, and that the means of in
struction can be introduced, rllteirarp cou*n<t,
-to employ capable persons, of good moral charac
ter, to instruct them in the mode of agriculture,
suited to their situation; and ibg teaching their
children in reading, writing, and arithmetic; and
for performing such other duties as irav be f.u-
joined. according to such instrve ions and rule® ns
tbe President may give ?.n<i orfsc.rih® for the reg
ulation of their conduct in the diecharge of their
duffos.
This ret avowedly conrcrrpla'cs the preserva
tion ofthe Indian rations as an object sought hv the.
United Slates, and prorrses to effect this oniecl
by civilizing and converting them from hunter*
Though thf' Cherokees bad
already made considerable progress m this improve-
went, it cannot ho doubted that the genera! 'w^rd**
of the act comprehend them. Their advance in
the“ habits and arts of civilization,” rc’ber en
couraged peisever.arice in the Inedible e.xerfions
still farther to mel'orafe their condition. This act
furnishes strong additional evidercl of a gelded,
purpose to fix the Indians in their country by giv
ing them security at home.
act, annihilating the political existence of one of
the parties. Had such a result been intended, it
would have been openly avowed.
This treaty contains a few terms capable of be
ing used in a sense whirl, could not have been in
tended at the time, and which is inconsistent with
the practical construction which has always been
put upon them ; but its essential articles treat the
Cherokees as a nation capable of maintaining the
relations of peace ar.l war; and ascertain the
boundaries between them and the United States.
The treaty of Hopewell seems to have establish
ed a solid peace. To^accommodate the differences
still existing between the Stale of Georgia and
the Cherokee nation, the treaty of Holstein was ne
gotiated, in July, 1791. The existing Constitution of
ihe United Stales had been then adopted, and the
Government, haying more intrinsic capacity to en
force its just claims, was perhaps less mindful of
hfoh sounding expressions denoting superiority.—
We hear no more of giving peace to the Chero
kees. The mutual desire of establishing perma
nent peace and friendship, and of removing all
causes of war, is honestly avowed, and, in pursu
ance of this desire, the first article declares, that
there shall be perpetual peace and friendship be
tween all the citizens of the United States of Amer
ica, and all the individuals composing the Chero
kee nation.
The second article repeats the important ac
knowledgment, that the Cherokee nation is under
protection of the United States of America, and
of no other sovereign whatsoever.
The meaning of this has been already explain
ed. The Indian nations were, from their situa
tion, necessarily dependent on some foreign poten
tate for the supply of their essential wonts, and
for their protection from lawless and injurious in
trusions into their countiy. That power was nat
urally termed their protector. They had been
arranged under the protection of Great Britain;
but the extinguishment ofthe British power in theii
neighborhood, and the establishment of that ofthe
United States in its place, led naturally to the dec
laration on tbe part of the Cherokees; that they
were under the prpucfiop of il# United States,
exercise of Power, or is
go v<
Is 1 his the rightful
usurpation.^
While these States were colonies, this power, in
its utmost extent, .was admitted to reside in the
crown. When our Revolutionary struggle com
merced, Congress was composed of an assemblage-
of depulies, acting under specific powers granted
by the Legislatures, or conventions of tbe severaf
colonies. It was a great popular movement, not
perfectly organized, nor were the respective powd
ers of those who were entrusted with the manage-;
ment of affairs accurately defined. The necessities
of our situation produced a general conviction tha*
those measures which consented all, must be trans-i
acted by a body in which the representatives of all
were assembled, and which couW command the
confidence of all. Congress, therefore, was consid
ered as invested with nil the powers of war and
peace, and Congress dissolved our connexion with
the mother country, and declared these United 1
Colonies to be independent States. Without any-*
written definition of powers, they employed diplo
matic agents to represent the United States at foe
several Courts of Europe; offered to negotiate
treaties with them, and did actually negotiate trea
ties with France. From the same necessity, anil
on the same principles. Congress assumed the ma»-
agement of Indian affairs; first in the name of these
United Colonies, and afterwards in the name of'
the United States. Early attempts were made st-
negotiation, and to regylatG trade with them.-*-
These not proving successful, war Was earned on
under the direction and with the forces of the Un>-
ted States, and the efforts to make peace by treaty
were earnest &. incessant. Tht^Cofrderation found;
Congress** in the exercise or tne same powers
of peace and war, in our relations with the Indian
nations, as with those of Europe. Such was thifr-
state ofthings whenthe Confederation was adopted-.
That instrument surrendered the powers of peace
and war to Congress, and prohibited them te the*
States, respectively, unless a State be actually in
vaded, “or shall have received certain advice of*
resolution being formed by some nation of Indians
to invade such State, ahd tbe danger jsjjfr emtni-
aqnt rts net to admit of delay, tiff
I