6

clared to be still in force and The third describes the nature binding on both parties. Relying and powers of the legislature. upon

these treaties, the Cherokee This is to consist of a Committee nation determined to part with no and a Council, each having a nemore territory, and availing them- gative on the other, and both to selves of the advantages held out be styled the General Council of by them, they had under the the Cherokee Nation.' The Comguidance of their sagacious chief- mittee is to consist of two memtains advanced rapidly in civiliza- bers from each of the eight distion and promised soon to be on tricts; and the council of three a footing of equality with the sur- from each district is to be chosen rounding whites.

by the qualified electors in their In 1827, a striking advance was respective districts, for the term made by their discarding in a of two years. All free male citigeneral council their former rude zens except persons of African government, which was based on origin, who have attained the age their aboriginal customs, and of eighteen years, are entitled to adopting a written constitution for vote at public elections and are the future government of the na- to vote viva voce. The other protion. This constitution was in visions of this article need not be substance as follows. The first stated, as they are similar to those article describes the boundaries which govern legislative proceedof the nation and declares that ings in the States of the Union. the jurisdiction of the govern- The fourth relates to the exment shall extend over the country ecutive power. This is vested in within the described boundaries, a Principal Chief, to be chosen and that the lands therein shall by the General Council, and to be the common property of the hold his office four years. An nation, but the improvements assistant Principal Chief is to be made thereon are to be the ex- chosen in the same manner, for clusive property of the individual four years; and every year, three citizens making or rightfully pos- men are to be appointed by the sessing the same. The citizens General Council, to be associated of the nation are to possess no with the assistant Principal Chief right to dispose of their improve as advisers of the Principal Chiess. ments in any manner to the Uni- The fifth defines the nature ted States, individual States nor and power of the Judiciary. The to individual citizens thereof, Judicial powers are vested in a

The second article divides the Supreme Court, and in such CirGovernment into three Depart- cuit and Inferior Courts as the ments : viz. the Legislative, Ex- General Council may, from time ecutive, and the Judicial, and pro- to time, establish. Three judges vides that no person belonging to constitute the Supreme Court, one of these departments, shall and hold their commissions for exercise any of the powers be- four years, but any of them may longing to another except in spe- be removed from office on the cified cases.

a

houses of the General Council Universal toleration in religion is to the Principal Chief. The allowed. judges receive a stated compensa

All commissions shall be in tion and are not to receive fees or the name of the Cherokee nation perquisites of office, nor to hold and sealed with the national seal, any other office of profit or trust and be signed by the Principal whatever. They are appointed Chief. by a joint vote of both houses of No

person shall, for the same the General Council, and are offence, be twice put in jeopardy eligible only within the ages of of life or limb, nor shall private thirty and seventy years. property be taken or applied to

The rights of the citizens are public use without his consent. secured in the following manner; The right of trial by jury shall In all criminal prosecutions, the remain inviolate. accused shall have the right of Schools, and the means of edbeing heard, of demanding the ucation shall be encouraged in the nature of the accusation, of meet- nation. ing the witnesses face to face, of The appointment of officers, having compulsory process for ob- not otherwise directed by the taining witness in his favor ; and, constitution, is vested in the Lein prosecutions by indictment or gislature. information, a speedy public trial The adoption of this constituby an impartial jury of the vicin- tion on the part of the Cherokee age, nor shall he be compelled to nation, by extinguishing the exgive evidence against himself.

pectations, which had been bithThe people shall be secure in erto entertained of effecting the their persons, houses, papers and removal of this tribe, from the possessions, from unreasonable State of Georgia with its own seizures and searches, and no consent, induced the local authoriwarrant shall issue to search any ties to assume a new ground, and place, or seize any person or to hold a different language, both thing, without describing them as to the Federal Government and nearly as may be, nor without to the Indians themselves. It had good cause, supported by oath or been until now conceded, that the affirmation. All prisoners shall be Federal Government had the enbailable upon sufficient securities, tire jurisdiction over this subject, unless for capital offences, where and the Government of Georgia the proof is evident or presump- had only urged, that it was its duty tion great.

under the compact of 1802, to The sixteenth article declares, extinguish the Indian title for the that no minister of the gospel use of Georgia at the expense of while discharging the exercises of the United States. It now asserthis functions, shall be eligible to ed a jurisdiction over the whole the office of Principal Chief, or matter, and undertook to pass a seat in the Legislature. laws extending its criminal and

· No person who denies the be- civil jurisdiction over the Indians ing of a God, or a future state of within its limits, by virtue of its rewards and punishments, shall authority as a sovereign State.

a hold any civil Office in the nation. According to this new doctrine, the Indian territory belonged, to produced their proper effect, and Georgia absolutely, the Cherokees after many threats, the State auwere tenants at her will, and she thorities were obliged to acquiesce had the right at any time to de- in the calm but firm decision of termine that tenancy, by taking the Executive. The system of possession and extending her au- threatening, however, was not dethority over the tribe. These parted from. principles, so novel in themselves, In 1828, the State Legislature were directly contrary to the es- passed a law, to take effect protablished practice of the Govern- spectively, extending her jurisdicment, and in violation of the pro- tion over the Indians. In 1829, visions of the Indian Intercourse the law was re-enacted to take Act, passed in 1796, and continu- : effect in 1830. A change had ed with some modifications in the now taken place in the adminisdetails by the act of 1802, which tration of the Federal Governwas still in force. By this law, ment, which was followed by a the citizens of the United States change in its policy towards the were prohibited from going into Indian tribes within the United the Indian territory, the bounda- States, and the States of Alabama ries of which were specified, un- and Mississippi imitated the exder pain of fine and imprison- ample of Georgia. These States ment. Settling upon the Indian were also partly occupied by Interritory, or surveying, or desig- dian tribes, bút under different nating boundaries thereon, was circumstances. The right to the declared punishable by fine and land, after the extinguishment of imprisonment; and the President the Indian title; became vested in was authorized to employ the the United States — the States military force to remove persons being created by act of Congress intruding on the Indian lands, and out of the public territory, and to deliver them over to the civil bound not to interfere with the authorities of the United States. public lands. In Alabama were The legislature of Georgia in 1828 the Creeks, a portion of the had advanced principles in viola- Cherokees, and a few Choctaws tion of this act by way of resolu- and Chicasaws. These two latter tions, but it was foreseen that so tribes, however, chiefly resided in long as the Federal Government Mississippi, and their relations with was determined to preserve its the United States were in the authority inviolate, these declara- main, similar to those existing tions could not be carried into with the Cherokees. They were effect. Similar encroachments also far advanced in civilization. . upon the federal authority had Almost immediately after the been attempted in relation to the inauguration of General Jackson, Creek Treaty, but the determina- communications were made by tion expressed by Mr Adams to the Executive to the Creeks and execute the laws, and his orders Cherokees, indicating the policy to the military, to arrest all intru- which would be in future pursued ders upon the Creek Territory, toward the Indian tribes, and the

views entertained by him, of the the United States, and well calcurelations existing between them lated to excite apprehensions as and the United States.

to the extent of the aboriginal The letter to the Cherokee claims. The attitude thus assumCouncil, together with the opinion ed by the Cherokee Nation was of the Attorney General, and the one which was never contemplamemorial of that nation to Con- ted and in which it could not be gress, and other documents con- sustained by the Federal Governtaining the statements of both ment. sides of the question, will be The Cherokee chieftains on found among the Public Docu- their part contended, that the ments in the second part of this right of their tribe to its territory volume. *

was anterior to all other claims, From these papers it appeared, and had been recognised by the that the federal administration whites and guarantied by treaties; conceded to Georgia, full power that their right of regulating their as a sovereign State, to extend her domestic affairs was equally uncivil and criminal jurisdiction over deniable and had never been all the Indians within her limits; surrendered ; that they had taken and that the treaties made with no part in the formation of the the United States, so far as they Constitution of the United States contravened this authority by guar- nor of the compact of 1802 with antying the Indian title, were not Georgia, and therefore were not binding upon the General Govern- bound by any of the provisions in ment, inasmuch as it had not a those instruments or any construcconstitutional right to make such tion put upon them; that if any treaties. It was also asserted, difficulty resulted from inconsistthat the Indian title was only a ent obligations, they should not be right to hunt, and consequently affected by it; and they suggestwas temporary and subject to be ed that

it was easy for the State abridged, whenever the country and Federal Governments to was wanted for the use of civiliz- modify the compacts between ed man; that the right guar- them so as to preserve the honor antied was a mere right of pos- of the United States, and to prosession, and that the guarantee mote the happiness and prosperity was never intended to be adverse of a people whose title to ibeir to the sovereign right of Georgia. territory was undeniable, whose

The State had hitherto been interests were becoming identiinduced to forbear to act, in the fied with their white neighbors expectation that some satisfactory and who had been always ready arrangement would be made; but to obey their call as friends and the course adopted in creating a allies. Cherokee Government prosessing Had this controversy been conto be independent, was inconsist- fined to these parties, no difficulty ent with the political system of probably would have grown out

en

of the dispute. The obligations tribe from the encroachments of of the Government of the United Georgia. The guarantee was inStates were too clear to permittended as a substantial protection any encroachment by any direct against all invasions upon the teragency upon the Cherokee terri- ritory reserved, and especially tory. This responsibility was as- against encroachments under the sumed by the State Governinent. authority of States. The diffiThe act of Georgia, which was culties, which had grown out of passed December 20th, 1828, * the doubts as to the authority of provided for a division of the Congress, under the articles of Cherokee country within the lim- confederation were the induceits of the State into five portions ment to invest the General Governand attached them to the five ment with enlarged authority over contiguous countries. The laws this. subject under the Federal of Georgia were extended over Constitution, and the encroachthe white residenis within the ter- ments which the inhabitants of ritory and the Indians were de- Georgia had formerly made upon clared to be subject after the first the Creeks and Cherokees of June, 1830, to such laws as croachments which had more the Legislature might prescribe. than once produced hostilities The Cherokee laws and customs between them and the whiteswere declared to be void after the were the chief motives to giving same period, and all Indians, or the guarantee in question. their descendants, residing within The faith of the nation was the nation, were declared to be therefore plighted to these tribes; incompetent, either as witnesses and their dependent situation gave or parties in a suit wherein a them a strong claim upon it, rewhite man was a party:

quiring the most scrupulous perThe harsh and arbitrary char- formance of all its obligations. acter of this law excited much No distinction, drawn from the feeling throughout the country; confederated character of the and the view which the new ad- Government, could be regarded ministration took of the obligations as an answer to these claims. of the United States towards the The power to pledge the national Cherokees, when conflicting with faith unquestionably belonged to the pretensions of Georgia, gave the National Government ; and good ground for apprehension as whether plighted to foreign powto the ultimate fate of this tribe. ers, to Indian tribes within its Meetings were held in various limits, or to its own citizens in a parts of the Union for the purpose state of rebellion, it gave a sacred of remonstrating against the con- character to its stipulations, which struction given by the Executive rendered their performance of o the tre aties between the United paramount importance. The States and the Cherokees. The practical construction given to Federal Government was declar- these treaties for forty years, ed to be bound to protect this which had been hitherto undis

* For act, vide Domestic Occurrences, under head of Georgia.