USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 65
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"3d. The third article stipulates, among other things, a free passage for the American troops through the Delaware nation, and engages that they shall be fur- nished with provisions and other necessaries at their value.
"4th. For the better security of the peace and friend- ship now entered into by the contracting parties against all infractions of the same by the citizens of either par- ty, to the prejudice of the other, neither party shall pro- ceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender or the offenders, by imprisonment, or any other compe- tent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs, and usages of the contracting par- ties, and natural justice," &c.
5th. The 5th article regulates the trade between the contracting parties, in a manner entirely equal. .
6th. The 6th article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United States, by their enemies, and from the imputation of which Congress was then peculiarly anxious to frec the Government. It is in these words: "Whereas the enemies of the United States have endeavored, by every artifice in their power, to possess the Indians in general with an opinion that it is the design of the States aforcsaid, to extirpate the Indians, and take possession of their country: To obvi- ate such false suggestion the United States do engage to guaranty to the aforcsaid nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware Nation shall abide by, and hold fast, the chain of friendship now entered into."
The parties further agree that other tribes, friendly to the interest of the United States, may be invited to form a State, whereof the Delaware nation shall be the head and have a representation in Congress.
This treaty, in its language, and in its provisions, is formed, as near as may be, on the models of treaties be- tween the crowned heads of Europe.
The 6th article shows how Congress then treated the injurious calumny of cherishing designs unfriendly to the political and civil rights of the Indians.
During the war of the Revolution, the Cherokees took part with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to im- press on the Cherokees the same respect for Congress which was before felt for the King of Great Britain. This may account for the language of the treaty of Hopewell. There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.
The treaty is introduced with the declaration, that " 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 Ameri- ca, on the following conditions."
When the United States gave peace, did they not al- so receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: Did the Cherokces come to the seat of the American Govern- ment to solicit peace; or, did the American commission- ers 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 first and second articles stipulate for the mutual restoration of prisoners, and are of course equal.
The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.
This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain and may probably be found in those with other Europe- an powers. Its origin may be traced to the nature of their connexion with those powers; and its true meaning is discerned in their relative situation.
The general law of European sovereigns, respecting their claims in America, limited the intercourse of In- dians, in a great degree, to the particular potentate, whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of pcace. It was sometimes changed in war. The con- sequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensahle to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians per- ceived in this protection, only what was beneficial to themselves-an engagement to punish aggressions on them. It involved practically no claim to their lands, na dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claim- ing the protection of a powerful friend and neighbor, and receiving the advantages of that protection, with- out involving a surrender of their national character.
This is the true meaning of the stipulation; and is undoubtedly the sense in which it was made. Neither the British Government, nor the Cherokecs, over un. derstood it otherwise.
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The same stipulation entered into with the United | spects the management of all their affairs. The most States, is undoubtedly to be construed in the same man- ner. They receive the Cherokee nation into their fa- vor and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the Ameri- can government, is explained by the language and acts of our first President.
The fourth article draws the boundary between the Indians and the citizens of the United States. But, in describing this boundary, the term "allotted," 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 cer- tainly were not critical judges of our language, should distinguish the word " allotted" from the words " mark- ed out?" The actual subject of contract was the divid- ing line between the two nations, and their attention may very well be supposed to have been confined to that subject. When, in fact, they were ceding lands to the United States, and describing the extent of their ces- sion, it may very well be supposed that they might not understand the term employed, as indicating, that instead of granting they were receiving lands. If the term would admit of no other signification, which is not con- ceded, its being misunderstood is so apparent, results so necessarily from, the whole transaction, that it must, we think, be taken in the sense in which it was most ob- viously used.
So with 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 suppos- ed, that any intention existed of restricting the full use of the lands they reserved.
Tothe United States, it could be a matter of no con- cern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, an occasional corn-field, interrupted, and gave some variety to the scene.
These terms had been used 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 their lands, or to interfere in their internal government.
The 5th 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 Indians may 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 on- ly inference to be drawn from them is, that the United States considered the Cherokees as a nation.
The 9th article is in these words: "For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or In- dians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper."
To construe the expression " managing all their af- fairs, " into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction, which has been uni- formly put on them. The great subject of the article is the Indian trade. The influence it gave, made it de- sirable that Congress should possess it. The Commis- sioners brought forward the claim, with the profession that their motive was, "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs con- nected with their trade, but cannot be true, as re-
important of these, is the cession of their lands, and se- curity against intruders on them. Is it credible, that they could have considered themselves as surrendering to the United States the right to dictate their future ces- sions, and the terms on which they should be made? Or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of self- government on subjects not connected with trade. Such a measure could not be " for their benefit and comfort," or for " the prevention of injuries and oppression." Such a construction would be inconsistent with the spi- rit of this and of all subsequent treaties; especially of those articles which recognize the right of the Chero- kees to declare hostilities, and to make war. It would convert a treaty of peace covertly into an act, annihi- lating 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 being used in a sense which could not have been intended 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 ca- pable of maintaining the relations of peace and war, and ascertain the boundaries between them and the United States.
The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of Holstein was negociated in July, 1791. The existing Constitution of the United States had been then adopted, and the Government having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high-sounding expressions de- noting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all canses of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citi- zens of the United States of America, and all the indi- viduals composing the Cherokee nation.
The second article repeats the important acknowledg- ment, that the Cherokee nation is under the protection of the United States of America, and of no other sove- reign whatsoever.
The meaning of this has been already explained. The Indian nations were, from their situation, necessa- rily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain; but the extinguishment of the British power in their neighborhood, and the establishment of that of the United States in its place, led naturally to the declara- tion on the part of the Cherokees, that they were under the protection of the United States, and of no other power. They assumed the relation with the United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and re- ceiving the protection of one more powerful; not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.
The third article contains a perfectly equal stipula- tion for the surrender of prisoners.
The fourth article declares, that "the boundary be- tween the United States and the Cherokee nation shall be as follows: Beginning," &c. We hear no more of "allotments" or of "hunting grounds." A boundary is described between nation and nation, by mutual con- sent. The national character of each, the ability of each, to establish this boundary, is acknowledged by
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the other. To preclude forever all disputes, it is agreed that it shall be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish forever all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For this additional consideration, the Chero- kees release all right to the ceded land forever.
By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these ces- aions is an acknowledgment of the right of the Chero- kees to make or withhold 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 made to the "management of all their affairs." The stipulation has already been explained. The observa- tion may be repeated, that the stipulation is itself an admission of their right to make or refuse it.
By the seventh article, the United States solemnly guarantee to the Cherokee nation, all their lands not hereby ceded.
The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport.
The remaining articles are cqual, and contain stipu- lations which would be made only with a nation admit- ted to be capable of governing itself.
This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self-go- vernment; thus guarantying their lands; assuming the duty of protection, and of course, pledging the faith of the United States for that protection, has been fre- quently renewed, and is now in full force.
To the general pledge of protection have been added several specific pledges, deemed valuable by the In- dians. Some of these restrain the citizens of the Unit- ed States from encroachments on the Cherokee country, and provide for the punishment of intruders.
From the commencement of our Government, Con- gress 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 protection which treatics stipulate. All these acts, and especially that of 1802, which is still in force, manifest- ly consider the several Indian nations as distinct politi- cal communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within these boundaries, which is not only acknowledged, but guarantied by the United States.
In 1819, Congress passed an act for promoting those humane designs of civilizing the neighboring Indians, which had long been cherished by the Executive. It enacts, " that for the purpose of providing against the further decline snd final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the 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 improvement in the habits and condition of such Indians practicable, and that the means of instruc- tion can be introduced, with their own consent, to employ capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the President may give and preseribe for the regulation of their conduct in the discharge of their duties."
the general words of the act comprehend them. Their advance in the "habits and arts of civilization," rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians in their country by giving them security at home.
The treaties and laws of the United States contem- plate the Indian territory as completely separated from that of the States; and provide that all intercourse with them shall be carried on exclusively by the Government of the Union.
Is this the rightful exercise of power, or is it usurpa- tion?
While these States were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our revolutionary struggle commenced, Con- gress was composed of an assemblage of deputies, act- ing under specific powers, granted by the Legislatures, or conventions of the several colonies. It was a great po- pular movement, not perfectly organized, nor were the respective powers of those who were intrusted with the management of affairs actually defined. The necessities of our situation produced a general conviction that those measures which concerned all, must be transacted by a body in which the representatives of all were as- sembled, and which could command the confidence of all: Congress, therefore, was considered as invested with all the powers of war and peace, and Congress dis- solved our connexion with the mother country, and declared these United Colonies to be independent States. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several Courts of Europe; of- fered to negociate treaties with them, and did ac- tually negociate treaties with France. From the same necessity, and on the same principles, Congress as- sumed the management of Indian affairs; first in the name of these United Colonies, and afterwards in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. | These not proving successful, war was carried on under the di- rection and with the forecs of the United States, and the efforts to make peace by treaty were earnest and in- cessant. The Confederation found Congress in the ex- ercise of the same powers of peace and war, in our re- lations with Indian nations, as with those of Europe. Such was the state of things when the Confederation was adopted. That instrument surrendered the pow- ers of peace and war to Congress, and prohibited them to the States, respectively, unless a State be actually in- vaded, " or shall have received certain advice of a reso- lution being formed by somc nation of Indians to invade such State,and the danger is so imminent as not to admit of delay till the United States in Congress assembled, can be consulted." This instrument also gave the Unit- ed States in Congress assembled the sole and conclusive right of "regulating the trade and managing all the af- fairs with the Indians, not members of any of the States: Provided, that the legislative power of any State within its own limits be not infringed or violated."
The ambiguous phrases which follow the grant of power to the United States, was so construed by the States of North Carolina and Georgia as to annul the power itself. The discontent and confusion resulting from these conflicting claims, produced representations to Congress, which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two States, but recommends an accommodation, by liberal cessions of territory, or by an admission on their part, of the powers claimed by Congress. The correet exposition of this article is ren- dered unnecessary by the adoption of our existing con- stitution. That instrument confers on Congress the powers of war and peace; of making treaties, and of re- gulating commerce with foreign nations, and among the
This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that | several States, and with the Indian tribes. These pow-
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ers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the Confederation, are dis- carded.
The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed posses- sors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other Euro- pean potentate, than the first discoverer of the coast of the particular region claimed: and this was a restriction which these European potentates imposed on them- selves, as well as on the Indians. The very term "na- tion," so generally applied to them means "a People distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanction- ed the previous treaties with the Indian nations, and consequently, admits their rank among those Powers who are capable of making treaties. The words, "treaty" and " nation" are words of our own lan- guage, selected in our diplomatic and legislative pro- ceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.
Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister States, and by the Go- vernment of the United States. Various acts of her Le- gislature have been cited in the argument, including the contract of cession made in the year 1802, all tend- ing to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extin- guished by the U. States, with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a bounda- ry line, established by treaties; that, within their boun- dary, they possessed rights with which no State could interfere; and that the whole power, regulating the in- tercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, manifesting her aban- donment of these opinions, appears to have commenced in December 1828.
In opposition to this original right possessed by the undisputed occupants of every country, to this recogni- tion of that right, which is evidenced by our history, in every change through which we have passed, is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others, whom he could not remove, and did not at- tempt to remove, and the cession made of his claims by the treaty of peace.
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