k ^ ^ 11 11 '^t!-w,°, ^v> *i> a\ ^ -A STATEMENT oh WITH A REPLV TO THE ARTICLE IN THE SIXTY-SIXTH NUMBER OF THE NORTH AMERICAN REVIEW, ON THE mspzav&f. Qf> SSI XNBIAZTfir &eto Hoik . < LAYTON & VAN NORDE.N, PRINTERS 42 WiUuim-tlrtt: (S.'JO. REMOVAL OF THE INDIANS The relations of the aboriginal tribes within the limits of the . Union to the state and federal governments, form an anomaly in the history of the world. Not entirely independent, nor yet ac- knowledging any authority except of their councils and chiefs they exist as distinct communities, surrounded, but not amalga- mated with the whites ; their relations with them defined by treaties, but with no right of appeal in case of their infraction, and no security for their observance, except the good faith and sense of justice of the stronger party ; governed by their loci! customs, Which, however, are not recognised as laws by the people who claim sovereignty over the whole country ; with an acknow- ledged right to the territory they occupy, founded in prescription, and guarantied by numerous treaties, but without the right o disposing of it at pleasure ; recognising no civilized system 01 jurisprudence, and legislating within their own limits only for their own people; their peculiar habits as a t li stintt class, ob viously modified by the influence of civilization, but leaving it still problematical, whether their existence as one of the species of the human race is not approaching its final termination — they present a subject well worthy the consideration of the philan- thropist, and from which the legislator and statesman cannot avert their attention, without assuming the most fearful responsi- bility. By the common consent of civilized nations, tlte aboriginal inhabitants of this continent were at an early period assumed to be dependent upon the sovereign who occupied it by the right of discovery. All interference with them by any other civilized power, was thus excluded; and the government, by virtue of its sovereign authority, prohibited or regulated all intercourse between them and its own citizens. They were thus reduced to a Mate ol de- pendency; but this, in some instances, as in the Anglo-American colonies, was done by acting indirectly upon the Indians, and by making only the white man amenable to punishment [for a violation of the laws regulating the intercourse with then* 4 Direct usurpation was thus avoided on the part of the civiii ■- led authorities; and though in some instances hostilities with the tribes, caused by the injustice and violence of the frontier set- tlers, have resulted in the conquest and occupation of Indian territory, the public faith, and the great principles of natural and national law, have been preserved inviolable, and substan- tial justice has been done to them. Even in the first settlement of the country, the right which the civilized man has to vacant territory was in no instance solely relied on. The imperfect right of the aborigines to the vacant wilderness was bargained for, and agreements were made, by which the consent of the chiefs was obtained for the occupation by the whites of certain territory. The history of the colonial settlements shows how generally this right was respected, and it may be safely asserted, that neither in the Anglo-American colonies or states was it ever pretended that the aboriginal had no title to the soil. The in- fluence of civilization, however, upon the natives, notwithstand- ing the earnest and zealous efforts of many benevolent men, was unfavourable. They yearly diminished in numbers. The Indian race, distinguished as it was for so many heroic and exalted qualities, seemed wasting away. The Pequot and Narraganset tribes had already ceased to exist ; and in a few more generations, unless some check could be interposed to the process of destruction, the sword, the pestilence, and the vices which they had acquired from the example of their ci- vilized neighbours, without adopting the social and political system which deprived those vices of their extirminating quali- ties, would have completed their work ; and the race would be numbered with those, whose language and customs only excite the curiosity of the antiquarian. The gradual recession of this extraordinary race from the advancing footsteps of civilization, and the disappearance of tribe after tribe from the continent, as it became occupied by civilized men, leaving only their monuments to indicate that they once had been, excited a melancholy interest in the public mind, even previous to the American revolution. The humane saw, that this process of extinction was every where a consequence of the contigui- ty of European settlements. As philanthropists, therefore, and as patriots, watchful over the national character, they were desirous to save the Indian from his impending fate, and to ele- vate him to the rank of civilized man. They felt this to be clue, not only to the savages and to their own character, but it was a just tribute to their ancestors, who had founded this empire of civilized humanity in the American wilderness, as an asylum from the oppression and injustice of the old world. Phey could nnt Itrar that their fathers should be reproached IS the merciless' extirpators of the aboriginal race. Upon the assumption of independence, this anxiety was in- creased by the greater responsibility which devolved upon 1 hem. as the sole arbiters of the future relation- that nnv to exist be- tween the civilized and christian states, established by their efforts and the ignorant and heathen tribes within their limits. While they anxiously sought to perpetuate and extend the American republic, the} were not unmindful of the untutored savages around them. Even at the commencement of their desperate coniliet. with the parent country — when their coast was assailed by her fleets, their territory occupied by her armies, and their frontier settlements threatened by the savages, who were regarded as a part of the means " placed by God and nature in her power," to reduce them to submission ; at this moment of impending peril, they forgot not their obligations towards the aboriginals, but deliberately adopted, as a part of their national policy, a plan to improve their condition. They exhorted them to stand aloof during the approaching conflict. An Indian department was organized, and placed under the direction of commissioners ; and in the same year that the declaration of independence received the sanction of Congress, resolutions were adopted, providing for the protec- tion and improvement of the condition of the aborigines, and recommending measures for the propagation of the gospel, and the introduction of the arts of civilized life among them. From that period, down to the adoption of the federal constitution, the efforts of congress were directed to establish peaceful and friendly relations between the United States and the Indian tribes, upon fair and moderate terms ; and upon the adoption of that instrument, this philanthropic policy was more fully developed, and carried into eflect with more enlarged views and extended means. Previous to that event, difficulties had grown out of the claims on the part of the state governments to participate in the care and establishment of our Indian relations. By the articles of confederation, congress was invested with the power " of regulating trade and managing all affairs with the Indians, not members of any of the states, provided the legislative rigln of any state within its own limits, be not infringed or viola- ted." These limitations on it- authority |>roved the source of much embarrassment under the old confederation. It was impossible to make any treaties w'uh Indian tribes which might not, in some event, be construed a- infringing or limiting the legislative right of the state within whose limit- they were situated. Collisions were also produced by the express limitation of this power lo Indians who were not members of the states, it was indeed easy to discriminate between the powerful southern and northwestern tribes, wiio claimed to be independent, and bv their number and courage afforded substantial evidence of the strength of their claim, and those feeble remnants that were found in the eastern and middle states, and the Indian reservations. These tribes, whose numbers seldom amounted to a hundred families, deprived of the power of sustaining themselves, par- tially civilized, and accustomed to depend upon the protection and humane care of the local authorities, were properly consi- dered as members of the states where they resided. Without any of the attributes cf independence — unable to protect them- selves from their neighbours, and even from themselves, it was humane and fit that those who were able should assume the power and responsibility of controlling and governing them. — They were not regarded as objects of the care of a govern- ment instituted for national purposes ; but formed a part of the several communities in whose bosom they dwelt, as the gipsies formerly constituted a part of the European slates. On the other hand, those tribes which did not come in con- tact with even the frontier settlements of the colonists, as natu- rally fell within the jurisdiction of the general government. They were independent in fact, under the government of their own chiefs and national councils ; and at the formation of our government, so far from claiming any authority over them, great solicitude was manifested, and great pains taken by the public authorities, to conciliate them, and to preserve their friend- ship and neutrality. Between these two classes there was a great distance, and the tribes that did not clearly fall within the one or the other, afforded ground for controversy between the continental con- gress and the state governments. The federal constitution was framed with full reference to this state of things. In the convention which framed that instru- ment, several efforts were ineffectual^ made to adjust these conflicting claims. At length the matter was arranged, by vesting the treaty- making power exclusively in the United States ; making these treaties the supreme law of the land ; and by omitting the proviso preventing congress from making any Indian regulations infringing the legislative right of any state within its own limits. The grant of unqualified authority to regulate commerce with the Indians, the exclusive right of repelling by force their hos- tile encroachments, and of making treaties with them, vested the whole power in the general government. fn pursuance of the authority thus granted, the venerable Washington and his eidightened cabinet proceeded to fulfil tbeii duties, both inwards the states and the Indian nations. Thej intended, if possible, to raise them to an equality with the whin s, and at all events to show to the world, in ease of their extinction, that the Aineriean government had no participation iii hastening that unhappy result. With this view, provisions were made regulatine; the Indian trade, and a deliberate scheme of policy adopted for their gra- dual improvement and civilization. Treaties were made with the principal tribes, defining the boundaries between their terri- tory and that belonging to the whites; and the United States agreed to furnish them with domestic animals, implements of husbandry, blacksmiths, and, in some instances, "suitable per- sons to teach them to make fences, cultivate the earth, and such of the domestic arts as are adapted to their situation." The object of these treaties cannot be misunderstood. It was an otter on the part of the national government to the aboriginal of civilization. It was a manifestation of one of the most glo- rious attributes of superior intelligence, and breathed the purest spirit of a religion, w hich proclaims peace on earth, good w ill among men. This offer was accepted on the part of the Indians. Amidst all the degradation which had attended their intercourse with the w hites, a portion of them had always manifested an earnest w ish to preserve their race from extinction, and to partake of the improvement of their civilized brethren. Upon this footing our relations stood at the commencement of the federal government. This government claimed sove- reignty over the whole territory as defined by the treaty of 1783. to the exclusion of all civ ilized powers ; but did not assume to exercise any of its rights over the Indian tribes, w hich existed a* distinct communities. Some of the tribes had so far diminished ; in number, as to cease to be objects of national concern. Others. , though more numerous and still preserving their individuality i and peculiar laws, had formed relations with the state govern- ments, anterior to the adoption of the federal constitution, which in some measure removed them from the jurisdiction of the general government. Such were the Six Nations, three of whom, the Oneidas, the Onondae;as and the Cawigas, previou* to that period, had ceded their lands to the state of New -York, and accepted of a title to the parts reserved for their ow n use, a- Buhgiiantees of the >tate. At a later period, the Mohawks executed a similar cession. The Six Nations too, having long before put themselves undei the protection of the colonial government of New-York, as de- pendents and allies, the ord'marv rotations between the general government and tlie Indian tribes, were in some degree modified *o far as these nations were concerned. With the powerful Southern and North Western tribes, these relations, although peculiar and anomalous, were sufficiently well defined. The tribes were treated as distinct and independent, and the boundaries between their lands and those relinquished to the whites, were marked out by treaties. To these treaties, the president affixed his seal, and the consent of two thirds of the senate was required to ratify them, as if made with foreign powers. They then became, in the language of the constitution, the supreme law of the land. By these treaties, the Indians stipulated to enter into no compact with any other power ; that the United States should have the exclusive right of regulating their trade, and the law regulating the intercourse with the Indians operating upon our own citizens, in effect, placed them in a state of dependence upon the federal government, ex- cept in their domestic concerns and internal regulations. On the other hand, the United States solemnly guarantied to them their lands not ceded, and expressly put all American citizens settling thereon out of their protection, and subjected them to the juris- diction and laws of the Indians. Provisions were also made for the surrender of criminals, and for the punishment of crimes committed by citizens within the In- dian territory. There were other relations, growing out of the character of the parties to these compacts. While the United States exer- cised a modified sovereignty over the country, and possessed by treaty the exclusive right of pre-emption of the aboriginal title, the Indians occupied and cultivated portions of it as agri- culturalists, used the remainder for hunting grounds, and held the guaranty of the United States for the whole territory, them- selves and their posterity. It might possibly have been supposed that no efforts would avert the fate to which the original inhabitants of this continent seemed destined, and that these stipulations would prove nuga- tory. This supposition, however, is inconsistent with the general spirit of these treaties, and is scarcely reconcilable with good faith. By the tenor of nearly all of these treaties, the permanent occupation of their country within the defined limits, by the Indians, is contemplated by both parties ; and the United States generally stipulated to furnish them with agricultural imple- ments, to cause them to be instructed in the mechanic arts ; to endeavour to civilize them, and to render them a stationary people, depending for subsistence on the cultivation of the soil, tn establishing these relations, the white man was the lawgiver, 0 and the aboriginals acceded to these treaties because tiiej con- tided in the good faith and superior intelligence of the civilised party. The President of the lnited States w as (heir Boreal fa- ther, and the general government stood in the relation of an adviser and guardian* The Undefined rights whic h had before < \i-ted w ere now mo- dified and settled by treaties. The right which civilized man had to occupy vacant territory in the wilderness, to the exclu- sion of the savage, was now changed to an absolute right to the country within spec ified limits, while the claim of the abo- riginal to the territory where lie had hunted w as converted into a guarantied right to a certain portion of it, defined by metes and bounds. Previous to this guaranty, their right to a por- tion of the country w as such as could not he w holly taken aw a\ , even for the use of civilized man, without a violation of the great and immutable principles of morality and natural justice. So long as the wilderness is large enough for all, the right which civilized man has to occupy it must be confined to the vacant territory. It must be exercised so as not to unnecessarilv deprive the Indian of that portion of land necessary for his ac- commodation. To this territory his right is complete, and cannot be affected by any claims derived from the superiority of civilized man. But when this is converted by treaties into an absolute right, — when the Indians have been encouraged to relinquish their vagrant habits for those of agriculturists, and to attach them- selves to the soil, all this reasoning, drawn from the difference between barbarous and civilized communities, is at an end. — The Indians become possessed of a right to the soil, which thev may use in any manner they deem proper, subject only to the condition that if sold it must be sold to the United States. — Until they do that, they may appropriate it for farming, for pas- turage, or hunting ; they may even divide it among them selves, and become a civilized people ; and the federal govern- ment bound itself, and is still bound, by numerous treaties, to promote that desirable object. Such were the relations between the federal government and the Indian tribes, when, with the view of determining a con- troversy which had existed ever since the revolution, between Georgia and the rest of the Union, concerning the western boundary, an agreement was made in 1802 by commissioners representing both parties. By that agreement each party gave up a portion of its claim : the state of Georgia relinquishing its claim to the territory now forming the stales of Alabama and Mississippi, and the United States relinquishing its claim to the territory between the western boundarv of Georgia and 10 line drawn along the Appalachian ridge to tiie head oi the Ocmulgea, down that river to the great turn opposite Jackson- ville, and thence to the head of the St. Mary's. This portion comprehends all the Indian territory. The federal govern- ment also bound itself to extinguish the Indian title within the state ; but, mindful of its previous obligations towards the abo- rigines, this stipulation was limited by a proviso, "when it could be done peaceably and upon reasonable terms." This agreement did not modify the existing relations with the Indian tribes in that state in the least degree. They were not parties to the agreement, and have never assented to it.— The general government, however, in pursuance of these new obligations, proceeded, at its own expense, to extinguish, from time to time, the Indian title to such portions of their territory as they were willing to sell. In this manner about 15,000,000 acres had been acquired by the state of Georgia previous to the year 1825. At the commencement of that year 9,537,000 remained in the possession of the Indians, of which 5,292,000 belonged to the Cherokees, and 4,245,000 to the Creeks. The state government had been pressing the general government for several years previous to that time, to complete the extinguish- ment of the aboriginal title, and the general government had vainly endeavoured to procure the assent of the Indians to the cession of any more land. They replied that they had no more than was wanted for lheir own use, and that they had resolved not to sell any more. The commissioners appointed to treat with the Creeks, notwith- standing this refusal, proceeded to form a treaty with a small portion of the nation for the cession of all their lands. This produced great excitement among the Creeks, who caused the two chiefs who signed the treaty to be executed for a violation of their laws. The treaty itself, which had been ratified by the President and Senate, without any knowledge of the circumstances under which it was executed, was after- wards declared void, as fraudulent. The state government, however, insisting on the treaty as valid, in order to prevent any collision between the federal and state authorities, the Creeks were induced to enter into a new treaty, by which their title to that part of their territory in the state of Georgia was extinguished. During the whole of this controversy, of which a more particular account will be found in the vol. of Annual Register for 1825-6, pages 42 and 343, and iu the next vol. page 85, the conduct of the general government, although de- nounced by the state, in a tone alike discreditable to its huma- nity and patriotism, was in conformity w ith both its express and implied obligations. 1 1 Hie Greeks being thus removed from the state, its attention was immediately directed towards the Cherokees. Tliis nation had been long distinguished for being in advance of the other Indian tribes in the arts of civilization. Some of their chief- tains have been really .ureal men, l'nll\ sensible of the di-;t army, Col. Williams' regiment, was saved from destruction. In that battle, the loss of the Cherokees was nearly equal to that of the whites, and congress, by a resolution, afterwards acknow- ledged the efficiency of their services. Are these sacrifices to be repaid by denying the validity of their claim ? Or does the increase of the white population around them confer a right inconsistent with the enjoyment of their fair inheritance, cultivated by their labour, and maintained by their arms, united with those of the United States against the British and Creek allied forces during the last war. In what book of national or natural jurisprudence is this doctrine laid down ? Where is it to be found, that treaties are not of binding force, because it is convenient to one party to refuse compliance with their obligations ? These are the questions, which must be suggested, upon an examination of the novel position taken by the federal govern- ment towards the Cherokees. The plain and liberal stipulations of the treaties are not controverted. Their binding force at the time of making the compact with Georgia, is not disputed. The uniform and practical construction given to these stipula- tions by the Cherokees, and by every administration of the federal government, down to the accession of Gen. Jackson, is not denied. The acquiescence of Georgia, and its direct and positive assent to this construction, by an act of the legislature of June 16, 1802, by the proclamation of Gov. Troup, March. 22d, 1S25, and by an act passed June 0th, 1825, are matters of history. Neither is it pretended, that the constitutional pro- vision, making treaties the supreme law of the land, is not still in force. A new position, however, is taken. The state of Georuia. resolves to extend its jurisdiction over the Cherokees, and the federal executive inform the Indians, that they cannot interfere with the exercise of the sovereign authority of a state, within it< own limits. This doctrine is reiterated by the subordinate 14 igi .us of the government; a board with the ostensible design of >enefitting the Indians, is got up in New-York ; letters pass be- tween this board and the superintendent of Indian affairs at \N ashington, expressing great sympathy for the unfortunate aborigines, and lamenting the inability of the general govern- ment to interfere in their behalf ; a dexterous appeal is made to the prejudices of the people, and they are led to believe that danger is to be apprehended to the integrity of the country, from the erection of an independent Indian state within the limits of one of the members of the confederacy; and lastly, but not least, an able and insidious essay on the subject, from the pen of a public agent of the government, well versed in Indian affairs, appears in the North American Review, and the influ- ence of its great authority/and the force of a most powerful, but a most unfair argument, is made to bear against this helpless and unprotected tribe. These positions deserve examination, and a cool and dispas- sionate consideration. To this they are entitled, and we are disposed to give it to them, without being at all moved by the fear of undue excitement being produced in the public mind, or of denunciations on the part of men already excited by what they term an impertinent interference in their concerns. This is not the concern of Georgia alone. It is the concern of the whole country; 1st, that its plighted faith shall be pre- served inviolate ; 2dly, that the supreme law of the land shall be carried into effect. It is the concern of the citizens of the Uni- ted States, that the powers, both of the general and the state governments, shall be maintained within their constitutional bounds, and no undue encroachment tolerated on either part. The present administration of the United States, assumes the ground that an interference with the state sovereignty would be unconstitutional, and this is also the ground taken by the author of the article in the North American Review. And why is not an interference on the part of the state government, with rights secured to the Indians by treaties, unconstitutional? When the claim of a state sovereignty clashes with the duties of the gene- ral government, which is paramount? Does not the federal con- stitution declare itself, and all treaties made pursuant to its provisions, to be the supreme law of the land? Where does Georgia find the right to set itself up above this plain and positive declaration, to which she so solemnly gave her sanction ? But the Reviewer inquires, (page 102,) and inquires as if the question must be answered affirmatively, what has a Cherokee to fear from the laws of Georgia ? conceding for the present the extraordinary principle advanced by this writer, that the Indians i are in ;i state of tutelage, and that the United States have tin sole right of determining upon the relations that shall exist be uveen both parties, and of making, construing, and annulling their treaties at pleasure, and to suit their own convenience, let ns examine this question, so fearlessly put, and see what a Chero- kee has to fear from these laws. First, the act of Georgia <>i December, 1828, deprives them of their territory without their consent, and in violation of the guaranty of the United States. Secondly, it disfranchises them, l>\ depriving them of the power to protect themselves, annulling and declaring void all their own laws and customs, and goes on to incapacitate them to ap- pear in the courts of Georgia, either as parties or witnesses. Thirdly, it repeals all the wholesome laws provided by them- selves, to restrain the vicious and to preserve good order in the nation ; annihilates the power of the Cherokee magistrates, by rendering it criminal for any chieftain to act under the authority of those laws; and it does not provide an\ substitute for the sys- tem thus abolished, nor any magistrates in the place of thosi thus superseded, but leaves this community without any legal restraint or legal protection, exposed to all the dangers which may arise from the absence of law, either from jke* lawless vio- lence among themselves, or on the part of the frontier settlers of Georgia, who may trespass with perfect impunity. Is there nothing fearful in all this ? To be reduced at once from the condition of a free citizen of an independent and or- derly community, to that of an outlaw on the soil inherited from his fathers ? To be dispossessed of his freehold and his coun- try ; to be rendered a vagabond, even w hile tilling the acres which his own hands have reduced to a state of cultivation : to be deprived of all legal protection, and exposed to public persecution and private indignity ? These are the changes to be effected as soon as " the net of Georgia legislation is sprung over him ;" and if the question of the right of extending state sovereignty over the Cherokees depends on the character of its legislation, there is in the nature of this law abundant proof of the violation of treaties. But the reviewer says that new pretensions are now advan- ced on the part of the Indian., and that the sovereignty of the state is violated by this erection of an Indian state within its limits. This assertion is incorrect. No new pretension is ad- vanced in the constitution adopted by the Cherokee nation, and the committee on Indian affairs, in their report to the Hou^se of Representatives, Feb. lSih, 1 829, say that they do mu per- ceive that it in any manner changes the relations ol the Chero- kees to the United States. In fact, it only renders orderly and legal that which was irregular and disorderly. It only accele- 16 rates the Improvement of the Cherokee nation as a civilized community. It is now no more independent than it was before the adoption of their constitution ; and the introduction of the principles of that instrument or code of laws among their cus- toms and domestic regulations, only tends to assimilate them to the whites who surround them, and to deprive them of those ha- bits which formerly rendered them dangerous neighbours. The reviewer, however, goes on — and this forms the main body of his very adroit and insidious argument — to assert that the condition of the Indians is daily growing worse ; that they are incapable of being civilized ; that their condition is one of tutelage, and that the superior intelligence should determine upon their fate without their consent, and even against their will ; that the states have necessarily the power of sovereignty as an inherent right over all persons within their limits. The proof he adduces is, that his intercourse with the Indians, which has been great, establishes the first and second positions. It must be observed, although the reviewer obviously wishes to produce a different impression, that his personal intercourse with the Indians has been confined to the north-western tribes, (page 70.) ''W'ith the southern tribes he has not had the same opportunities of personal observation. He however says, that " of the Creeks and Cherokees, however, we have some per- sonal knowledge, and so far as our personal intercourse with them has extended, they present to us the same external ap- pearance, and the same general traits of character, which else- where mark the race of red men." Whether the reviewer has ever been in the Creek or Chero- kee country, he does not inform us, and we take it for granted that he has not, but that his personal intercourse has been li- mited to an introduction to their delegations at Washington, and casual meetings with individuals of the tribes in other parts of the country. Yet with this limited knowledge, he presumes to decide upon their actual condition and ultimate fate. Nay more ; in the next page, (71,) he says, " we doubt whether there is upon the face of the globe a more wretched race than the Cherokees, as well as the other southern tribes at present. Many of them exhibit spectacles as disgusting as they are degrading." No evidence is adduced, upon which tliis sweeping denunciation is made, except the next following sentence. " Only three years since an appropriation was made by congress upon the representations of the authorities of Flo- rida, to relieve the Indians there from starvation." This is the proof upon which the reviewer relies for his doubts as to the condition of the Cherokees, and his assertions concerning the other southern tribes. This is the evidence he brings forward in the absence of all personal observation, to overthrow th< official statements of the superintendent of Indian affairs abov< quoted, as to their actual condition. What will the public thmfc of his candour and fairness, when we state as a lad, and one ol which the reviewer could not haw been ignorant, that these Florida Indians who were relieved by congress, were Senunolfes, who bad been removed from tlieir own lands, and who we,, reduced to that state of starvation from the inadequacy of tin? land assigned by the United States to maintain them. About the time alluded to, the governor of Florida, William 1*. Dtrvall, explored their country, with the view of ascertaining whether the complaints of the Seminoles concerning its barrenness were well founded, and an extract of his report to the Indian depart- ment, dated February 22d, 182G, furnishes the following descrip- tion of their territory : " I never have seen a more wretched tract of country, than that Which I entered five or six miles south of Chucuchatty — the sand hills rise very high, and the Indian trail winds over an extensive sand ridge for eight or nine miles ; the whole of the timber for this distance, as far as the eye can survey, has been killed by fire : the burnt and blackened pines, without a leaf, added to the dreary poverty of the land, presents the most miserable and gloomy prospect I ever beheld. — After descending the southern extremity of this ridge, I entered a low, wet, piney counti \ spotted with numerous ponds. So low was the whole countrx as far as the Indian boundary extended towards Tampa Baj . that, after riding all day and until eleven o'clock at night, in the hope I would find a dry spot to sleep upon, I was compelled to take up my lodging on a low wet place for the night. No set- tlement ever can be made in this region, and there is no land in it worth cultivation. The best of the Indian lands are worth but little; nineteen twentieths of their whole country within the present boundary, is by far the poorest and most miserable re- gion I ever beheld. I have therefore to advise, as my dutv demands, and the honour and humanity of my country require, that the Big Swamp be also given to the Indians, ami that the northern side be lixed five miles north of the Big Swamp, and extended to the Okelawaha river east, and so far west as to include the Big Haminoc." This was the cause of their distress ; and because congress was called upon to relieve their wants, brought upon them by tie act of the general government, an inference is drawn against al l the southern tribes; and they, forsooth, present a "most diseji-t ing and degrading spectacle.^ Jn the name of humanity, w< would ask if this is the mode in which these unfortunate n il"* are to be reasoned out of their rights : 16 The misery brought upon a portion of them by our own act, is to furnish an argument for the removal of all the tribes, and for their exposure to similar contingencies and similar privations, A portion of them are miserable and starving, and consequently the whole are doomed to ultimate destruction, and it is not worth while to interpose the national arm to stay the uplifted blow! The next position of the reviewer is, that the Indians are in a state of tutelage, and that the superior intelligence has the right to determine upon their fate. Frequent reference is made to a decision of the supreme court of New- York, and an act of the legislature of that state, passed 182?, is cited by him to establish that position. It is unnecessary here to go into a minute examination of the principles of that decision, or to compare, or rather to contrast, the conduct of that state with that of Georgia. A sufficient answer is to be found in the peculiar relations existing between the local government of New- York and the Indian tribes within her limits, anterior to the adoption of the federal constitution. These relations were those of dependence on the government of that state, as appears from the treaties between the tribes and the state government before referred to, and by the following extract from a report to the continental congress, May 1st, 1782. " 1st. It clearly appeared to your committee, that all the lands belonging to the Six Nations of Indians, and their tributaries, have been in due form put under the protection of the crown of England by the said Six Nations, as appendant to the late government of New-York, so far as respects jurisdiction only. " 2d. That the citizens of the said colony of New- York have borne the burthen, both as to blood and treasure, of protecting and supporting the said Six Nations of Indians, and their tribu- taries, for upwards of 1-00 years last past, as the dependents and allies of the said government. 4 '3d. That the crown of England has always considered and i reated the country of the said Six Nations, and their tributaries, inhabiting as far as the 45th degree of north latitude, as appen- dant to the government of New- York. • 4th. That the neighbouring colonies of Massachusetts, Connecticut, Pennsylvania, Maryland, and Virginia, have also^ from time to time, by their public acts, recognised and admitted the said Six Nations, and their tributaries, to be appendant to i he government of New- York." These relations, which were peculiar to these Indians, confirm- ed as they were by the treaties before cited, in which the tribes eeded all their lands to the state of New- York, and took sub- irran ts from the state government seem to settle the whole question. The >tatr fro\ eminent by virtue of this dependence, and as para- ID mount sovereign, had a right, not only to pass a statute, assum- ing criminal, I >u t even civil jurisdiction* This, however, it did not do. It confined itself far within the limits of its power, and only exercised >o mnch as to preserve social order and quiet within the Indian reservations. The jurisprudence of that state, notwithstanding this act, does not adopt the principles advanced by this reviewer, and cited by him with such unqualified approbation. The doctrines laid down by the supreme court in the case of Jackson VS« Goodell, which are those cited by him to sustain his argument, are not the law of that state. They were solemnly reversed at the next term of the court for the correction of errors, and the learned and conclusive opinion of Chancellor Kent, establishing the opposite doctrines, was sanctioned by the whole court, con- sisting of thirty-four members, with but one dissenting voice. This fact is suppressed by this reviewer, and the public is left in . 4tf*ignorance, that the law of the state of New-York i-, "thai These tribes have never been regarded as citizens, or members of our body politic. They have always been, and are still con- sidered by our laws, as dependent tribes, governed by their own usages and chiefs, but placed under our protection, and subject to our coercion, so far as the public safety required it, and no farther." "The act of 1822 does not affect the question, whether the remainder of the Six Nations still rightfully exist as a separate people, or whether they have become incorporated into the body politic, as members and citizens. When the time shall arrive for us to break down the partition between us and them, and to annihilate the political existence of the Indians as nations and tribes, 1 trust we shall act fairly and explicitly, ami endeavour to effect it with the full knowledge and assent of the ^ ylndians themselves, and with the most scrupulous regard to their * weaknesses and prejudices, and with the entire approbation of the government of the United States. I am satisfied that such a course would be required by prudence, and would become necessary, not only for conscience sake, but for the reputation of our national justice." (20 Johns. Hep. 111.) This is the law of New- York, as declared by Chancellor Kent, whose opinions are partially cited in this review, although the peculiar relations of that Stale with the Indians would justily it in going farther. No such relations twisted between the south- ern Indians and the government of Georgia. So far from being dependent, the state of Georgia, in the 7th year of its tndepen deuce, and anterior to the formation of the federal government, acknowledged by treaty the Cherokee tribe to be a nation, and it was not until the whole subject w as confided to the general government, that the 9tat€ of Georgia fell itself safe from tli« 20 threatening aspecl assumed by these tribes, then in a state of war. ind spurning all dependence. These positions having been shown to be untenable — the Cherokees being far more civilized than the north western In- dians, and evincing a greater capacity for self improvement; not growing worse, but actually advancing both in numbers and knowledge — not acknowledging themselves to be in a state of tutelage, but with their rights and obligations clearly defined by treaties with the general government, and not modified by any peculiar relations contracted with the state of Georgia at any previous moment, the only ground remaining to examine, is the apprehended danger to state sovereignty. These dangers to state sovereignty form a most convenient plea, whenever every other pretence seems to fail. Is the coun- try to be rendered defenceless in the very presence of a powerful and exasperated foe; the sovereignty of the states, furnishes both the pretext and the means to thwart the exertions of the natiorftl% government for the public defence. Is a plan devised to deve- lope the resources of the country, to improve its navigable rivers, to connect distant parts of the Union, by the bonds of mutual interest in facilitating the exchange of their respective produc- tions : the cry of danger to state sovereignties is raised, and the beneficent spirit of internal improvement is at once arrested in mid career. Does a revenue law bear with peculiar severity upon any I (articular section of the Union ? The constitution is again viola- ted, and the state governments are invoked to step forth to protect their interests by a direct interference with the laws of the Union. Does a treaty guaranty to the Indians territory within the limits of a state — its sovereignty is endangered by this guaranty, and its power must be exercised tojt direct and posi--d tive violation of national faith. In what are\hese pretensions to end ? If there is no other restraint than that imposed by the moderation and discretion of the state authorities, the integrity of the Union cannot be maintained. Its bonds are as weak as ropes of sand, to be severed whenever sectional prejudices and interests drive violent and lawless men into collision with the general government. Is this, in truth, our condition, that our character as a people cannot be preserved — that our solemnly plighted national faith cannol be redeemed — that our constitutional laws and obliga- tion- < annot lie enforced ? This is, indeed, a solemn and mo- mentous question. On one side is a direct, and perhaps a forci- ble collision of the federal with a state government; but on the other there is a virtual dissolution of the federal compact. An execution of the laws of the Union by force, is an event to be BB 12-8 ^ 21 contemplated with feelings ofthe deepest awe, and with great apprehensions as to the ultimate result ; but one open and bug- ' cessful violation of those laws, one positive defiance of the obli- gations impo>ed by tin* federal < on>titution, on tin* part of 0 i state, presents an example pregnant with consequences still ] more disastrous. Let this bond of union be thus impaired and I set at nought, and anarchy at one- usurps the plat e of constitu- I tional order. The law of the strongest will be substituted in place of the constitution, and the weaker states will lie at the mercy of the larger and more powerful. To avert this State of | confusion — to preserve the whole Union from that anarchy i which must ensue from each of its members enforcing its o#n j claims, the federal constitution, and all treaties made under it, J; were made the supreme law of the land. The neecs>ar\ power to enforce that law is intrusted to the President of the United States, and he is hound by every obligation of patriotism, by ill that he owes to the confidence reposed in him by his fellow j citizens, enforced by the solemn sanction of an oath, " to main- I tain, protect, and defend, to the best of his ability," the consti* ; tutional powers of the federal government He may still be spared this painful alternative, by forbearance | and moderation on the part of Georgia. By acting towards the Cherokees according to the dictates of a generous policy, i, all practical difficulties may be avoided. If suffered to continue undisturbed upon their lands, the progress of civilization and the increase of knowledge will, in the lapse of a few years, mo- dify their customs, and lit them for an amalgamation with the white population. This is the object of their ardent wishes, which, in conformity with the long-settled policy of the United States, they have been earnestly striving to attain. Their desires on this point have been distinctly stated to the government, and if they are Suffered to realize them, a practical volution will he given to all the intricacies and difficulties now presented by thi< , question. But if this amicable adjustment of the matter shall not take place, and the state of Georgia, governed by a spirit of grasping avarice, and insensible to all considerations of humanity, na- , tional faith, and federal allegiance, shall proceed to execute her designs in defiance of the supreme laws of die land, we trust that the President of the United States will fearlessly perform his duty, and save the republic from the lasting reproach of viola- ting the faith of treaties I a v ■ ^ :MSSk' Hj /' x -W* ; if ^ A* ^ hi -m&s ^x w •> cores bros UBRARV GINOINC ^ S *-AUGUSTINE ^ * ~ * 1* ^^m FLA -