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Opinion on the right of the state of Georgia to extend her laws over the Cherokee nation online

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C{/jl.A.ixi^



OFINZON



ON THE RIGHT OF THE



STATE OF GEORGIA



TO EXTEND HER LAWS



THE CHEROKEE NATION.



BY WILLIAM WIRT, ESQ.



Reprinted from a copy forwarded from the press of the Cherokee
Phoenix, Echota.



33altimoft:

PUBLISHED BY F. LUCAS, JR.
1830.






.e 5 Vi






OPINION, &c.



The Cherokee Nation of Indians have submitted, for my
opinion, the following

CASE,

Long before the arrival of the Europeans on this continent,
and from time immemorial, they have been a sovereign na-
tion, rightfully under the sole and exclusive government of
their own laws, usages and customs, within their own do-
minions, of which dominions, except so far as altered by
treaty, they have ever been and still are the absolute lords
and masters, acknowledging no earthly superior. The ar-
rival of the Europeans on this continent, produced no change
in their political condition. They were never conquered.
They have had various wars with the white people, which
have been followed by treaties of peace, of which, the white
people were always as desirous as themselves. They have
also made various cessions of their lands to the white peo-
ple, by voluntary treaty. But they have always been re-
spected, and treated with, by the British Government, by
the State Governments, by that of the United States, under
their articles of confederation, and lastly, by that of the pre-
sent United States, under their federal constitution, as a
sovereign people^ to be governed exchmvely, by their own
laws, usages and customs, and owing no allegiance, either to
the State Governments, or to the Government of the United
States ; nor amenable to their laws, except so far as they
have engaged, by their own voluntary treaties, to respect
those of the United States, made to give cjj'ect to tliese treaties.
If the United States declare war against a foreign country,
the Cherokees are not bound to take a part in that war, un-
less they chose to do so of tiieir own accord. If a civil war
take place among the States, tlie Cherokees arc not involv^-
ed in that war, nor responsible for its consequences. Tiicy



have nothing to do, cither with the State Governments or
the Federal Government ; had no voice in the formation of
their respective constitutions; are not represented in their
councils; are not called upon to contribute to the expense of
those governments, which are to them, foreign governments;
and have never, heretofore, been required, or expected to
obey the laws of these Governments, nor in any manner to in-
termeddle with tliem, or to be affected by them.

By various cessions of their lands, made from time to
time, by treaties, and for valuable consideration, their once
extensive domain has been much reduced, but is still sulfi-
ciently large for all their purposes. This domain lies within
what are called the chartered limits of four of tlie states of
the Union, the states of Georgia, North Carolina, Tennes-
see and Alabama. Within this domain they are still sove-
reign, and governed ecclusively by their own laws; having
never been considered or treated as citizens of these slates, or
of the United States; having none of the rights of such citi-
zens; but on the contrary, in all their treaties with tlie Uni-
ted States, being continually spoken of as conlra-distin-
guislied from the citizens of the United States. They have
had wars with the United States, which have been termina-
ted by treaties of peace ; they have never been regarded as
traitors in such wars, which they must have been, if they
were citizens of the United States; but on the contrary, the
treaties of peace, which have followed such wars, have
borne all the characters, and have contained all the stipula-
tions which are usual in such treaties, when made between
two sovereign nations who have been engaged in war.

Their first treaty with the United States, was at that
made at Hopewell in 1785. The preamble to this treaty,
as it stands in the English language, in which it was reduced
to writing, states that the Commissioners of the United
States "gn'Cjjcocc to all the Cberokces, and receive them
into the favour and protection of the United States on the fol-
lowing conditions." The Cherokecs have understood that
a certain description of men, whose trade it is to deal in
icords, and who, therefore, think more of ?f orf/s than things,
have caught at the expression "^'-ii'c pcacc'^'' as an admission,
on the part of the Cherokecs, that they were a conquered
2)cople, and were suing lor j)eace, at the feet of their con-
querors, on such terms as they should be pleased to dictate;
but these word-mongers can know very little of the history



of that time and that transaction, or must suppose themselves
addressing others equally ignorant uj)oa this subject, wlien
they venture to draw such an inference from those words.
To those who know the truth of the case, this inference is
mere smoke. Every white man, decently acquainted with
the history of his own country, knows that the United States
came out of the war of the revolution in a state of extreme
exhaustion, and were the first to sue for peace from the In-
dians, who had been engaged in that war, on the British
side. The United States asked peace of the Cherokees, and
after having refused it for some time, the Cherokees at length
acceded to it, and it was established by this treaty. As to
the words employed in the preamble, it is idle to attempt
to draw an inference of fact from them, so directly op-
posed to the well known historical truth of the case. In
making this treaty, the Cherokees, according to their habit,
looked to the substance of the thing, not to the form. The
expression in the preamble, on which this quibble is raised,
against the known fact, is in a language not then understood
by the Cherokees. The treaty was arranged by interpreters :
and the tlimg understood was, that there ivas to be peace by
mutual consent, and this was the only thing understood. The •
Cherokees well knew that tliey were inferior to their white
brethren in the arts of peace as well as the science of war.
Aware of this, they were willing to prolit by tbeir protec-
tion. Before the revolution, they had declared themselves
under the protection of the British, and the King of England
was called their "Great Father," And the United States
> having now become an independent nation, tbay were willing
to place themselves, in like manner, under the protection of
the United States. %\.\\. 'proleciion is one thing, and subjection
another. The first they were willing to receive; if the last
had been demanded, as a condition of the treaty, the hatchet
would not have been buried at Hopewell, in 17 bo. But the
question whether they were a conquered people or not, who
were thenceforth to lose their separate national existence, to
renounce the rights of self-government, to become citizens of
the United States, and to be governed in common with their
other citizens, by the laws of the Unhed States or of the
individual States, is not to be answered by a rcfeicnce to
these few words only, thus Ibislcd into tlie preamble in a
language unknown to the Cherokees. This question is to be
answered by an appeal to the stipulations of the treaiy,



themselves. This is substance not form. And to these the
Cherokces fearlessly appeal in proof of the fact that they
were treated with, and acknowledged as a separate, sovereign
nation., who were to have the exclusive possession of their
own territory, designated in that treaty by metes and bounds,
free from any interruption by the citizens of the United States,
from whom the treaty clearly distinguishes them ; and
they are regarded, by that very treaty, as clothed with that
pre-eminent badge of sovereignty, the right of making war ;
even of making war upon the United States.

The first and second articles in the treaty are in these
words: "The head men and warriors of all the Clierokees^
shall restore all the prisoners, citizens of the United States,
or subjects of their allies, to their entire liberty, they shall, also
restore all the negroes and all other property taken during
the late war, from the citizens to such person, and at such
time and place, as the Commissioners shall appoint."

2d. "The commissioners of the United States in Congress
assembled, shall restore all the prisoners taken from the In-
dians, during the late war, to the head men and warriors of
the Cherokees, as early as is practicable."
, Does this mutual exchange of prisoners import a conquer-
ed people, who had lost their national sovereignty by right
of conquest.'' On the contrary, it is the stipulation of equal
sovereigns who had been engaged in lawful war, and finds a
place in all treaties of peace among the sovereigns of Eu-
rope.

Again, the 8th article is in these words : " It is understood
that the punishment of the innocent under the idea of retalia-
tion, is unjust, and shall not be practised on either side, ex-
cept where there is a manifest violation of this treaty, and .
then it shall be preceded first by a demand of justice; and if
refused, then, bij a declaration of hostilities." Is it possible
to reconcile this right of declann"- regular war against the
United States with the idea that the Cherokees were a con-
quered people, who had surrendered their national sove-
reignty, and had agreed to become amalgamated Avith the ci-
tizens of the United Stales? What right could citizens of the
United States have to levy war against the United States.''
Such an act would be treason, not regular war.

Tlie 4th arti(;hi b(!gins tlius: " The bmnulary line allotted
to the Cherokees i'ov their hunting grounds, bdircen the said
Indians and the citizens of the United Slates, within the limits



of the United States of America, is and shall be the follow-
ing:" in this striking manner distinguishing between the In-
dians and the citizens of the United States^ and separating
them by a marked boundary.

The 4th article having designated the boundar}'-, the 5th
provides "thatif awi/ citizen of the United States shall attempt
to settle on any of the lands within that boundary, he shall for-
feit the protection of the United States, and the Indians may
punish him or not, as they please." Thus again recognizing
the distinction between the Indians and citizens of the Uni-
ted Skites; and recognizing., at the same time, the sovereign right
of the Indians to give the laic and to inflict punishment xoithin
their own boundaries. The 6th article provides for the de-
livering up, by the Indians, of any Indian or other person
residing among them, or loho shall take refuge in their nation,
who shall have committed robbery or murder or other capi-
tal crime on any citizen of the United States. The 7th arti-
cle contains a correspondent provision for the punishment of
any citizen of the United States or person under their pro-
tection, who shall have committed the same sort of crimes
on the Indians. The 10th article gives liberty to all traders,
citizens of the United States to go to any of the tribes, or towns
of the Cherokees, to trade with them, and stipulates that they
shall be protected in their persons and property, and kindly
treated. The 1 1th stipulates that the said Indians shall give
notice to the citizens of the United States of any hostile de-
sign of the neighbouring tribes against them.

Thus, the distinction between the Indians and the citizens of
the United States pervades the whole treaty. The Cherokees
are, in every partof this national compact, treated as a separate
and sovereign nation, clothed with the right of self-government
within their own territory, and the high and solemn right of
making peace and war with the United States, with an ex-
press stipulation that the citizens of the United States who
intrude upon them, shall be entirely at their mercy.

Some of the officers of the United States claim this treaty as
a still subsisting treaty, and insist on all its stipulations in their
favour, while another high officer of the UnitediStates on the
occasion of a recent punishment intlicted bu the Indians un-
der the 5th article, has denied the authority of the treaty, on
the ground that it was '■'■made more than forty years ag-o."
The Cherokees presume that tfic treaty is cither in force, or
not in forcej it cannot be in force as against them, and, at



the same lime, obsolete where it works in their favour. As
to its having been made more tlian forty years ago, they have
not been favoured with a reference to that work on the law of
nations, from ^vhich the very enliglitened officer in question
lias derived the principle that a treaty, unlimited in its terms,
becomes obsolete, cifler forty years: more especially when, as
in this case, the treaty has been recognized by the parties as
a subsisting treaty, down to the present time. The language
with which the 4th article opens — "tlie boundary allotted to
the Chcrokees for their hunting grounds" — has given occa-
sion to farther quibbles on words which scarcely deserve no-
tice. The word allotted is, again, supposed to imply and ad-
mit a conquest of the Cherokees, and that the United States
as their sovereigns, were making them a gracious and tempo-
rary loan of these lands, for the mere purpose of hunting on
them, until the United States should be pleased to resume
them. The criticism either means this, or it means nothing
of any account or value. But it is a mere hypercriticism on
icords which is refuted by every provision of the treaty, by
the practical construction under it, by every subsequent trea-
ty and its practical construction; and, lastly, by the courts of
the United States, themselves, whenever they have been
called to consider the character of the Indian title to their
lands. How would these phrases, which are deemed so sig-
nificant in the English language, have been interpreted to
the Cherokees, who, from their ignorance of the language,
could have been negotiated with, only, through an interpre-
ter.'' What other idea could have been conveyed to them, by
any interpreter, than that the boundary about to be described
was to be the boundary belioeen them and the citizens oftlie Uni-
ted States. As the boundary, itself, the only material thing
in question, accorded with their own notions of their rights,
was it to have been expected of them to take exceptions to
the niceties of expression in a language which they did not
understand, in order to guard against the future possibility of
quibbles which they as little understood .'' Quibbles, too, in
a treaty, whose object and essence is plain and honest good
faith, and a tieaty \y\[\vunenUghlcncd hulians, who were in-
vited to {)laco tkemselves under (he protection of the Inited
States? As totiieir grounds being called hunting grounds,
the designation Avas proper: the Cherokees were, tiicn, in
the hunter state, and, at that tunc, had no other use for these
grounds but for the supjiorl aud chase of their game. They



have since, on the solicitation and under the tuition and as-
sistance of the United States, become agriculturists: and their
right to use their grounds for agriculture has been acknowl-
edged in solemn treaties: yet on this phrase "hunting
grounds," "in a treaty made more than forty years ago," an
argument is attempted to be raised that their only right to
these grounds is for the purpose of hunting on them.

After this treaty of Hopewell, another war broke out be-
tween the United States and the Cherokee Indians, and this
was terminated by the treaty of Holston in 1791, The fed-
eral constitution of the United States had then been adopt-
ed; and this treaty was negotiated by commissioners appoint-
ed and instructed by President Washington, by and with the
previous advice and concurrence of the Senate of the United
States. In the message of consultation which he sent to the
Senate on that occasion, he states that the white people had
intruded on the Indian lands, as bounded by the treaty of
Hopewell; declares his determination to execute the power
entrusted to him by the constitution, to carry that treaty into
faithful execution, unless a new boundary should be arranged
with the Cherokees, embracing the intrusive settlement, and
compensating the Cherokees therefor.

And he puts to the Senate, among others, this question.

"3. Shall the United States stipulate solemnly to guaranty
the new boundary which shall be arranged ?"

The Senate answer :

"Resolved, that in case a new, or other boundary, than
that stipulated by the treaty of Hopewell, shall be conclu-
ded with the Cherokee Indians, that the Senate do advise and
consent solemnly to guaranty the same."

This consultation took place in August, 1790: and, in
consequence of it, the treaty of Holston was made on
the 2d July, 1791. It is a treaty between the Cherokee
JVation on the one side, and the United States on the
other, treating as sovereigns. The obnoxious words, "the
United States give peace,'''' do not occur here. The first
article is: "There shall be perpetual peace and friend-
ship between all the citizens of the United States of Jlme-
r'lca, and all the individuals composing the Cherokee nation
of Indians.^'' Here we have the same distinction again pre-
sented, between all the citizens of the United States and all
the individuals composing the Cherokee nation of Indians.

By the 2d article the Cherokees acknowledge themselves
2



10

to be under the protection of the United States of Jimerica,
and of no other sovereign whosoever ; and stipulate that they
'■'"will not hold any treaty with any foreign power ^ individual
State, or with individuals of any Stale.''''

They, thus placed themselves e.vclusivcly under the pro-
tection of the United States, and not ol' any one state, and
their political capacity to treat with foreign powers is admitted,
by the stipulation rccpdred of them, that they ivill not exercise
this right. Is not this an additional admission on the part
of the United States, of the sovereignty of the Cherokee Na-
tion ?

The third article again stipulates a mutual exchange
of prisoners, in tlie style constantly in use among equal so-
vereigns, who are concluding a war by a treaty of peace.

"Article 4th. The boundary between the citizens of the
United States and the CVierofcce JVation is and shall be as
follows" — the article then proceeds to designate the bounda-
ry — provides for the marking of it — and "in order to extin-
guish forever all claims of the Cherokee JVation or any part
thereof," to the lands lying out of this boundary, the com-
pensation is fixed, and the lands are ceded by the Cherokees.

The 5th article stipulates that the citizens and inhabitants
of the United Stales shall have a free and unmolested use of
a road through the Cherokee Territory. The Cherokee
Territory is thus acknowledged to have been so exclusively
theirs, that the citizens of the United States would have no
right even of passage through it, unless the Cherokees had
conceded this right by treaty.

The 7th article contains the guaranty \\liich President
Washington had proposed to the Senate, and which the Senate
had advised. The article is in these words :

"Article 7th. The United States solemnly guaranty to the
Cherokee JVation, all their lands, not hereby ccded.''^

"Article 8th. Jf any citizen of the United Slates, or other
person, not bein<^ an Indian, shall settle on any of the Che-
rokees'' lands, such person shall Ibrl'eit tlie protection of the
United States, and tliC Cherokees may punish him or not as
they please.''^

"Article 9lh. JVocilizen or inhabitant of the United States
shall attempt to iiunt or destroy the game 07i the lands of the
Cherokees; nor shall a7iy citizen or inhabitant go into the
Cherokee country, without a passport first obtained from the
Governor of some one of the United States or territorial



11

districts, or such other person as the President of the Uni-
ted States may, from time to time, authorize to grant the
same."

By the 10th article, the Cherokees bind themselves to de-
liver up any of their own people, or others, fugitives from
justice, who shall have committed crimes against citizens of
the United States^ and have taken refuge hi the JYation. Why
was this necessary, if their Teritory belonged to the jurisdic-
tion of Georgia ?

By the 11th article, it is provided that "if any citizen or
inhabitant of the United States, or of either of the territorial
districts of the United States shall go info any town or settle-
ment or territory belonging to the Cherokees, and shall there
commit any crime upon, or trespass against the person or
property of any peaceable and friendly Indian, which, if
committed icitlwi the jurisdiction of any state, ovxcithin the ju-
risdiction of either of the said districts, against a citizen or
White inhabitant thereof, ivould be jnuiished by the laws of
such state or district, such offenders shall be subject to the
same punishment, and shall be proceeded against in the same
manner, as if the offence had bee7i committed within the juris-
diction of the state or district to lohich he or they may belong:
against a citizen or white inhabitant thereof" Here is a
distinct and decisive admission by the United States, that "the
towns, settlements and territory belonging to the Cherokees,"
are not uiihin the jurisdiction of any state or territory of the
United States, nor subject to the latcs of tliose states or territo-
ries; and that but for this consent on the part of the Clierokees
by treaty, that citizens of the United States committing crimes
within their jurisdiction might be punished by the laws of their
oivn states or territories, those citizens xoould have been regular-
ly punishable for such crimes only by the jurisdiction of tlie
Cherokees, against wliich tJtey had offended.

The 12th article of the treaty stipulates tliat, in case of
violence on tlie persons or property of the individuals of
either party, neither retaliation or reprisal shall be committed
by the other, until satisfaction shall have been demanded of
the party of which the aggressor is, and shall have been re-
fused, llere is the right of war by the Cherokees against
the United States again admitted.

The 1 3th article, again stipulates, that the Cherokees shall
give notice to the citizens of the United Stales of any hostile
designs which may liavc been formed against them.



12

Art. 14th. " That the Cherokee nation may be led to a
greater degree of civilization, and to become herdsmen and
cultivators instead of remaining in a state of hunters, the Uni-
ted States will, from time to time, furnish gratuitously, the
said nation with useful implements of husbandry, and fur-
ther to assist the said JVation in so desirable a pursuit, and at
the same time to establish a certain mode of communication,
the United States will send such, and so many persons to re-
side in said JVation, as they may judge proper, not exceeding
foyr in number, who shall qualify themselves to act as inter-
preters. These persons shall have lands assigned tliem by the
Cherokees for cultivation for themselves, and their success-
ors in office; but they shall be precluded exercising any kind
of traffic."

In tliis manner the United States have continued to treat
with the Cherokee Nation, as a sovereign Nation, down to
the present time.

In the year 1 808, the Cherokee Nation expressed to the
United States their inclination to divide themselves into two
Nations. Part of them, about one tliird, were disposed to
continue the hunter state, and, with this view, to remove to
the west, where game was more abundant, on lands to be
assigned to them by the United States in exchange for their
proportion of the lands east of the Mississippi; the other
part were disposed to remain "io engage in the pursuits of
agriculture and civilized life in the country tliey then oc-
cupied'''' — where, "they proposed to begin the establiihment
affixed laics, and a regular government?'' Their wishes
were communicated to the President of the United States,
who favoured the scheme. Under his permission, and sanc-
tion, part of them removed, in the year 1809, to the Arkan-
sas, and the separation was carried into complete effect by
the treaties of 1817, 1819; it heing perfectly understood,
agreed, and encouraged by the United States, that those
who should remain, would '■'■engage in the pursuits of ag-
riculture and civilized life,'''' under the protection of '■fixed


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Online LibraryWilliam WirtOpinion on the right of the state of Georgia to extend her laws over the Cherokee nation → online text (page 1 of 3)