Part 18

19. This treaty is to be obligatory after ratification.

20. The United States guarantee the payment of all unpaid just claims upon the Indians, without expense to them, out of the proper funds of the United States for the settlement of which a cession or cessions of land has or have been heretofore made by the Indians in Georgia, provided the United States or State of Georgia has derived benefit therefrom without having made payment therefor.

This article was inserted by unanimous request of the Cherokee committee after the signing of the treaty, it being understood that its rejection by the Senate of the United States should not impair any other article of the treaty.

On the 31st of December, 1835, James Rogers and John Smith, as delegates from the Western Cherokees, signed an agreement which is attached to the treaty wherein they agreed to its provisions on behalf of the Western Cherokees, with the proviso that it should not affect any claims of the latter against the United States.

[Footnote 345: United States Statutes at Large, Vol. VII, p. 478.]

SUPPLEMENTARY ARTICLES TO FOREGOING TREATY, CONCLUDED MARCH 1, 1836; PROCLAIMED MAY 23, 1836.[346]

_Agreed on between John F. Schermerhorn, commissioner on the part of the United States, and the committee duly authorized at a general council held at New Echota, Georgia, to act for and on behalf of the Cherokee people._

MATERIAL PROVISIONS.

These articles were concluded as supplementary to the treaty of December 29, 1835, and were ratified at the same time and as a part of that treaty. They were rendered necessary by the determination of President Jackson not to allow any pre-emptions or reservations, his desire being that the whole Cherokee people should remove together to the country west of the Mississippi.

1. All pre-emption rights and reservations provided for in articles 12 and 13 are declared void.

2. The Cherokees having supposed that the sum of $5,000,000, fixed as the value of Cherokee lands, did not include the amount required to remove them, nor the value of certain claims held by them against citizens of the United States, and the President being willing that the subject should be referred to the Senate of the United States for any further provision that body should deem just.

3. It is agreed, should it receive the concurrence of that body, to allow the Cherokees the sum of $600,000, to include the expenses of removal and all claims against the United States not otherwise specifically provided for, and to be in lieu of the aforesaid reservations and pre-emptions and of the $300,000 for spoliations provided in article 1 of the original treaty to which this is supplementary. This sum of $600,000 shall be applied and distributed agreeably to the provisions of said treaty, the surplus, if any, to belong to the education fund.

4. The provision of article 16 concerning the agency reservations is not intended to interfere with the occupant right of any Cherokees whose improvements may fall within the same.

The $100,000 appropriated in article 12 for the poorer class of Cherokees, and intended as a set-off to the pre-emption rights, shall now be added to the general national fund of $400,000.

5. The expenses of negotiating the treaty and supplement and of such persons of the Cherokee delegation as may sign the same shall be defrayed by the United States.

NOTE.--The following amendments were made by the United States Senate: In article 17 strike out the words "by General William Carroll and John F. Schermerhorn, or;" also, in the same article, after the word "States," insert "by and with the advice and consent of the Senate of the United States;" and strike out the 20th article, which appears as a supplemental article.

HISTORICAL DATA.

ZEALOUS MEASURES FOR REMOVAL OF EASTERN CHEROKEES.

While the events connected with the negotiation and the execution of the treaty of 1828 with the Western Cherokees were occurring those Cherokees who yet remained in their old homes east of the Mississippi River were burdened with a continually increasing catalogue of distressing troubles. So soon as the treaty of 1828 was concluded it was made known to them that inducements were therein held out for a continuance of the emigration to the Arkansas country. Agent Montgomery was instructed[347] to use every means in his power to facilitate this scheme of removal, and especially among those Cherokees who resided within the chartered limits of Georgia.

Secret agents were appointed and $2,000 were authorized by the Secretary of War to be expended in purchasing the influence of the chiefs in favor of the project.[348] A. R. S. Hunter and J. S. Bridges were appointed[349] commissioners to value the improvements of the Cherokees who should elect to remove.

After nearly a year of zealous work in the cause, Agent Montgomery was only able to report the emigration of four hundred and thirty-one Indians and seventy-nine slaves, comparatively few of whom were from Georgia.[350] Nine months later three hundred and forty-six persons had emigrated from within the limits of that State.[351] The hostility manifested by the larger proportion of the Cherokees toward those who gave favorable consideration to the plan of removal was so great as to require the establishment of a garrison of United States troops within the nation for their protection.[350]

_President Jackson's advice to the Cherokees._--Early in 1829,[352] a delegation from the nation proceeded to Washington to lay their grievances before President Jackson, but they found the Executive entertaining opinions about their rights very different from those which had been held by his predecessors. They were advised[353] that the answer to their claim of being an independent nation was to be found in the fact that during the Revolutionary war the Cherokees were the allies of Great Britain, a power claiming entire sovereignty of the thirteen colonies, which sovereignty, by virtue of the Declaration of Independence and the subsequent treaty of 1783, became vested respectively in the thirteen original States, including North Carolina, and Georgia. If they had since been permitted to abide on their lands, it was by permission, a circumstance giving no right to deny the sovereignty of those States. Under the treaty of 1785 the United States "give peace to all the Cherokees and receive them into favor and protection." Subsequently they had made war on the United States, and peace was not concluded until 1791. No guarantee, however, was given by the United States adverse to the sovereignty of Georgia, and none could be given. Their course in establishing an independent government within the limits of Georgia, adverse to her will, had been the cause of inducing her to depart from the forbearance she had so long practiced, and to provoke the passage of the recent[354] act of her legislature, extending her laws and jurisdiction over their country. The arms of the United States, the President remarked, would never be employed to stay any State of the Union from the exercise of the legitimate powers belonging to her in her sovereign capacity. No remedy for them, could be perceived except removal west of the Mississippi River, where alone peace and protection could be afforded them. To continue where they were could promise nothing but interruption and disquietude. Beyond the Mississippi the United States, possessing the sole sovereignty, could say to them that the land should be theirs while trees grow and water runs.

The delegation were much cast down by these expressions of the President, but they abated nothing of their demand for protection in what they considered to be the just rights of their people. They returned to their country more embittered than before against the Georgians, and lost no opportunity, by appeals to the patriotism as well as to the baser passions of their countrymen, to excite them to a determination to protect their country at all hazards against Georgian encroachment and occupation.[355]

GENERAL CARROLL'S REPORT ON THE CONDITION OF THE CHEROKEES.

About this time[356] General William Carroll was designated by the President to make a tour through the Cherokee and Creek Nations, with both of which he was supposed to possess much influence. His mission was to urge upon them, and especially upon the former, the expediency of their removal west of the Mississippi under the inducements held out by the treaty of 1828. A month later[357] Col. E. F. Tatnall and on the 8th of July General John Coffee were appointed to co-operate with General Carroll in the accomplishment of his mission. The results of this tour were communicated[358] to the War Department by General Carroll in a report in which he remarked that nothing could be done with the Cherokees by secret methods; they were too intelligent and too well posted on the current news of the day to be long kept in ignorance of the methods and motives of those who came among them. He had met their leading men at Newtown and had submitted a proposal for their removal which was peremptorily rejected. The advancement the Cherokees had made in religion, morality, general information, and agriculture had astonished him beyond measure. They had regular preachers in their churches, the use of spirituous liquors was in great degree prohibited, their farms were worked much after the manner of white people, and were generally in good order. Many families possessed all the comforts and some of the luxuries of life. Cattle, sheep, hogs, and fowl of every kind were found in great abundance. The Cherokees had been induced by Eastern papers to believe the President was not sustained by the people in his views of their proposed removal. Eastern members of Congress had given their delegation to understand while in Washington the preceding spring that the memorial left by them protesting against the extension of the laws of Georgia and Alabama over Cherokee territory would be sustained by Congress, and that until that memorial had been definitely acted on by that body all propositions to them looking toward removal would be worse than useless.

_Cherokees refuse to cede lands in North Carolina._--In the early summer of 1829[359] a commission had also been appointed, consisting of Humphrey Posey and a Mr. Saunders, having in view the purchase from the Cherokees of that portion of their country within the limits of North Carolina, but it, too, failed wholly of accomplishing its purpose.

_Coercive measures of the United States and Georgia._--Sundry expedients were resorted to, both by the General Government and by the authorities of Georgia, to compel the acquiescence of the Indians in the demands for their emigration.

The act of the Georgia legislature of December 20, 1828, already alluded to, was an act "to add the territory within this State and occupied by the Cherokee Indians to the counties of De Kalb _et al._, and to extend the laws of this State over the same." This was followed[360] by the passage of an act reasserting the territorial jurisdiction of Georgia and annulling all laws made by the Cherokee Indians. It further declared that in any controversy arising between white persons and Indians the latter should be disqualified as witnesses. Supplementary legislation of a similar character followed in quick succession, and the proclamation of the governor of the State was issued on the 3d of June, 1830, declaring the arrival of the date fixed by the aforesaid acts and the consequent subjection of the Cherokee territory to the State laws and jurisdiction.[361]

The President of the United States about the same time gave directions[362] to suspend the enrollment and removal of Cherokees to the west in small parties, accompanied by the remark that if they (the Cherokees) thought it for their interest to remain, they must take the consequences, but that the Executive of the United States had no power to interfere with the exercise of the sovereignty of any State over and upon all within its limits. The President also directed[363] that the previous practice of paying their annuities to the treasurer of the Cherokee Nation should be discontinued, and that they be thereafter distributed among the individual members of the tribe. Orders were shortly after[364] given to the commandant of troops in the Cherokee country to prevent _all persons_, including members of the tribe, from opening up or working any mineral deposits within their limits. All these additional annoyances and restrictions placed upon the free exercise of their supposed rights, so far from securing compliance with the wishes of the Government, had a tendency to harden the Cherokee heart.

FAILURE OF COLONEL LOWRY'S MISSION.

In this situation of affairs Col. John Lowry was appointed[365] a special commissioner to visit the Cherokee Nation and again lay before them a formal proposition for their removal west. The substance of Mr. Lowry's proposal as communicated by him to their national council[366] was: (1) To give to the Cherokees a country west of the Mississippi, equal in value to the country they would leave; (2) each warrior and widow living within the limits of Alabama or Tennessee was to be permitted, if so desiring, to select a reservation of 200 acres, which, if subsequently abandoned, was to be sold for the reservee's benefit; (3) each Indian desiring to become a citizen of the United States was to have a reservation in fee-simple; (4) all emigrants were to be removed and fed one year at the expense of the United States, and to be compensated for all property, except horses, they should leave behind them, and, (5) the nation was to be provided with a liberal school fund.

Again the result was an emphatic refusal[367] on the part of the Cherokees to enter into negotiations on the subject. Other special commissioners and emissaries, of whom several were appointed in the next few months, met with the same reception.

DECISION OF THE SUPREME COURT IN CHEROKEE NATION VS. GEORGIA.

Determined to test the constitutionality of the hostile legislation of Georgia, application was made at the January term, 1831, of the Supreme Court of the United States, by John Ross, as principal chief, in the name of the Cherokee Nation, for an injunction against the State of Georgia. The application was based on the theory that the Cherokee Nation was a sovereign and independent power in the sense of the language of the second section of the third article of the Constitution of the United States providing for judicial jurisdiction of cases arising between a State, or the citizens thereof, and foreign states, citizens, or subjects. The majority of the court declared that the Cherokee Nation was not a foreign nation in the sense stated in the Constitution, and dismissed the suit for want of jurisdiction. From this decision, however, Justices Thompson and Story dissented.[368]

FAILURE OF MR. CHESTER'S MISSION.

No further formal attempt was made to secure a compliance with the wishes of the Government until the winter and spring of 1831-'32. A delegation of Cherokees had visited Washington in the interests of their people, and though nothing was accomplished through them, the language used by some members of the delegation had led the Government authorities to hope that a change of sentiment on the subject of removal was rapidly taking place in their minds. In pursuance of this impression the Secretary of War, in the spring of 1832,[369] intrusted Mr. E. W. Chester with a mission to the Cherokees, and with instructions to offer them as a basis for the negotiation of a treaty the following terms:

1. The United States to provide them with a country west of Arkansas sufficiently large for their accommodation.

2. This country to be conveyed to them by patent under the act of Congress of May 28, 1830, and to be forever outside the limits of any State or Territory.

3. The Cherokees to retain and possess all the powers of self-government consistent with a supervisory authority of Congress.

4. To have an agent resident in Washington to represent their interest, who should be paid by the United States.

5. With the consent of Congress they should be organized as a Territory and be represented by a delegate in that body.

6. All white persons should be excluded from their country.

7. The United States to remove them to their new country and to pay the expenses of such removal, which might be conducted in either of three ways, viz:

(_a_) By a commutation in money, to be allowed either individuals or families.

(_b_) By persons to be appointed and paid by the United States.

(_c_) By arrangement among themselves, through which some competent person should remove them at a fixed rate.

8. The United States to provide them with subsistence for one year after removal.

9. An annuity to be secured to them proportioned to the value of the cession of territory they should make.

10. The United States to pay for all Indian improvements upon the ceded land.

11. Provision to be made for the support of schools, teachers, blacksmiths and their supplies, mills, school-houses, churches, council-houses, and houses for the principal chiefs.

12. A rifle to be presented to each adult male, and blankets, axes, plows, hoes, spinning-wheels, cards, and looms to each family.

13. Indian live stock to be valued and paid for by the United States.

14. Annuities under former treaties to be paid to them upon their arrival west of the Mississippi.

15. Provision to be made by the United States for Cherokee orphan children.

16. Protection to be guaranteed to the Cherokees against hostile Indians.

17. A few individual reservations to be permitted east of the Mississippi, but only on condition that the reservees shall become citizens of the State in which they reside, and that all reservations between them and the United States, founded upon their previous circumstances as Indians, must cease.

_Cherokees contemplate removal to Columbia River._--In the discussion of these propositions the fact was developed that a project had been canvassed, and had received much favorable consideration among the Cherokees themselves (in view of the difficulties and harassing circumstances surrounding their situation), to abandon their eastern home and to remove to the country adjacent to the mouth of the Columbia River, on the Pacific coast. This proposition having reached the ears of the Secretary of War, he made haste, in a letter to Mr. Chester,[370] to discourage all idea of such a removal, predicated upon the theory that they would be surrounded by tribes of hostile savages, and would be too remote from the frontier and military posts of the United States to enable the latter to extend to them the arm of protection and support.

Nothing was accomplished by the negotiations of Mr. Chester, and in the autumn[371] of the same year Governor Lumpkin, of Georgia, was requested to attend the Cherokee council in October and renew the proposition upon the same basis. A similar fate attended this attempt.

DECISION OF SUPREME COURT IN WORCESTER VS. GEORGIA.

Among other laws passed by the State of Georgia was one that went into effect on the 1st of February, 1831, which prohibited the Cherokees from holding councils, or assembling for any purpose; provided for a distribution of their lands among her citizens; required all whites residing in the Cherokee Nation within her chartered limits to take an oath of allegiance to the State, and made it an offense punishable by four years' imprisonment in the penitentiary to refuse to do so. Under this law two missionaries, Messrs. Worcester and Butler, were indicted in the superior court of Gwinnett County for residing without license in that part of the Cherokee country attached to Georgia by her laws and in violation of the act of her legislature approved December 22, 1830. In the trial of Mr. Worcester's case, which was subsequently made the test case in the Supreme Court of the United States, he pleaded that he was a citizen of Vermont and entered the Cherokee country as a missionary with the permission of the President of the United States and the approval of the Cherokee Nation; that Georgia ought not to maintain the prosecution inasmuch as several treaties had been entered into by the United States with the Cherokee Nation, by which the latter were acknowledged as a sovereign nation, and by which the territory occupied by them had been guaranteed to them by the United States. The superior court overruled this plea, and Mr. Worcester was tried, convicted, and sentenced to four years in the penitentiary.

The case was carried up on a writ of error to the Supreme Court of the United States, and that court asserted its jurisdiction. In rendering its decision the court remarks that the principle that discovery of parts of the continent of America gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession, was acknowledged by all Europeans because it was the interest of all to acknowledge it, and because it gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it, but not one which could annul the rights of those who had not agreed to it. It regulated the rights of the discoverers among themselves, but could not affect the rights of those already in possession as aboriginal occupants. It gave the exclusive right of purchase, but did not found it on a denial of the right of the possessor to sell. The United States succeeded to all the claims of Great Britain, both territorial and political. Soon after Great Britain had determined on planting colonies in America the King granted sundry charters to his subjects. They purport generally to convey the soil from the Atlantic to the South Sea. The soil was occupied by numerous warlike nations, milling and able to defend their possessions. The absurd idea that feeble settlements made on the sea-coast acquired legitimate power to govern the people or occupy the lands from sea to sea did not then enter the mind of any man. These charters simply conferred the right of purchasing such lands as the natives were willing to sell. The acknowledgment of dependence made in the various Cherokee treaties with Great Britain and the United States merely bound them as a dependent ally claiming the protection of a powerful friend and neighbor and receiving the advantages of that protection, without involving a surrender of their national character. Neither the Government nor the Cherokees ever understood it otherwise. Protection did not imply the destruction of the protected.

Georgia herself had furnished conclusive evidence that her former opinions on the subject of the Indians concurred with those entertained by her sister States and by the Government of the United States. Various acts of her legislature had been cited in the argument of the case, including the contract of cession made in 1802, all tending to prove her acquiescence in the universal conviction that the Cherokee Nation possessed a full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line established by treaties; that within their boundary they possessed rights with which no State could interfere, and that the whole power of regulating the intercourse with them was vested in the United States. The legislation of Georgia on this subject was therefore unconstitutional and void.[372]