binding on both parties. Relying upon these treaties, the Cherokee nation determined to part with no more territory, and availing themselves of the advantages held out by them, they had under the guidance of their sagacious chieftains advanced rapidly in civilization and promised soon to be on a footing of equality with the surrounding whites.

In 1827, a striking advance was made by their discarding in a general council their former rude government, which was based on their aboriginal customs, and adopting a written constitution for the future government of the nation. This constitution was in substance as follows. The first article describes the boundaries of the nation and declares that the jurisdiction of the government shall extend over the country within the described boundaries, and that the lands therein shall be the common property of the nation, but the improvements made thereon are to be the exclusive property of the individual citizens making or rightfully possessing the same. The citizens of the nation are to possess no right to dispose of their improvements in any manner to the United States, individual States nor to individual citizens thereof.

The second article divides the Government into three Departments: viz. the Legislative, Executive, and the Judicial, and provides that no person belonging to one of these departments, shall exercise any of the powers belonging to another except in specified cases.

and powers of the legislature. This is to consist of a Committee and a Council, each having a negative on the other, and both to be styled 'the General Council of the Cherokee Nation.' The Committee is to consist of two members from each of the eight districts; and the council of three from each district is to be chosen by the qualified electors in their respective districts, for the term of two years. All free male citizens except persons of African origin, who have attained the age of eighteen years, are entitled to vote at public elections and are to vote viva voce. The other provisions of this article need not be stated, as they are similar to those which govern legislative proceedings in the States of the Union.

The fourth relates to the executive power. This is vested in a Principal Chief, to be chosen by the General Council, and to hold his office four years. An assistant Principal Chief is to be chosen in the same manner, for four years; and every year, three men are to be appointed by the General Council, to be associated with the assistant Principal Chief as advisers of the Principal Chiefs.

The fifth defines the nature and power of the Judiciary. The Judicial powers are vested in a Supreme Court, and in such Circuit and Inferior Courts as the General Council may, from time to time, establish. Three judges constitute the Supreme Court, and hold their commissions for four years, but any of them may be removed from office on the address of two thirds of both

houses of the General Council to the Principal Chief. The judges receive a stated compensation and are not to receive fees or perquisites of office, nor to hold any other office of profit or trust whatever. They are appointed by a joint vote of both houses of the General Council, and are eligible only within the ages of thirty and seventy years.

The rights of the citizens are secured in the following manner; In all criminal prosecutions, the accused shall have the right of being heard, of demanding the nature of the accusation, of meeting the witnesses face to face, of having compulsory process for obtaining witness in his favor; and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage, nor shall he be compelled to give evidence against himself.

The people shall be secure in their persons, houses, papers and possessions, from unreasonable seizures and searches, and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without good cause, supported by oath or affirmation. All prisoners shall be bailable upon sufficient securities, unless for capital offences, where the proof is evident or presumption great.

The sixteenth article declares, that no minister of the gospel while discharging the exercises of his functions, shall be eligible to the office of Principal Chief, or a seat in the Legislature.

No person who denies the being of a God, or a future state of rewards and punishments, shall hold any civil office in the nation.

Universal toleration in religion is allowed.

All commissions shall be in the name of the Cherokee nation and sealed with the national seal, and be signed by the Principal Chief.

No person shall, for the same offence, be twice put in jeopardy of life or limb, nor shall private property be taken or applied to public use without his consent.

The right of trial by jury shall remain inviolate.

Schools, and the means of education shall be encouraged in the nation.

The appointment of officers, not otherwise directed by the constitution, is vested in the Legislature.

The adoption of this constitution on the part of the Cherokee nation, by extinguishing the expectations, which had been hitherto entertained of effecting the removal of this tribe, from the State of Georgia with its own consent, induced the local authorities to assume a new ground, and to hold a different language, both to the Federal Government and to the Indians themselves. It had been until now conceded, that the Federal Government had the entire jurisdiction over this subject, and the Government of Georgia had only urged, that it was its duty under the compact of 1802, to extinguish the Indian title for the use of Georgia at the expense of the United States. It now asserted a jurisdiction over the whole matter, and undertook to pass laws extending its criminal and civil jurisdiction over the Indians within its limits, by virtue of its authority as a sovereign State. According to this new doctrine,

the Indian territory belonged, to Georgia absolutely, the Cherokees were tenants at her will, and she had the right at any time to determine that tenancy, by taking possession and extending her authority over the tribe. These principles, so novel in themselves, were directly contrary to the established practice of the Government, and in violation of the provisions of the Indian Intercourse Act, passed in 1796, and continued with some modifications in the details by the act of 1802, which was still in force. By this law, the citizens of the United States were prohibited from going into the Indian territory, the boundaries of which were specified, under pain of fine and imprisonment. Settling upon the Indian territory, or surveying, or designating boundaries thereon, was declared punishable by fine and imprisonment; and the President was authorized to employ the military force to remove persons intruding on the Indian lands, and to deliver them over to the civil authorities of the United States. The legislature of Georgia in 1828 had advanced principles in violation of this act by way of resolutions, but it was foreseen that so long as the Federal Government was determined to preserve its authority inviolate, these declarations could not be carried into effect. Similar encroachments upon the federal authority had been attempted in relation to the Creek Treaty, but the determination expressed by Mr Adams to execute the laws, and his orders to the military, to arrest all intruders upon the Creek Territory,

produced their proper effect, and after many threats, the State authorities were obliged to acquiesce in the calm but firm decision of the Executive. The system of threatening, however, was not departed from.

In 1828, the State Legislature passed a law, to take effect prospectively, extending her jurisdiction over the Indians. In 1829, the law was re-enacted to take effect in 1830. A change had now taken place in the administration of the Federal Government, which was followed by a change in its policy towards the Indian tribes within the United States, and the States of Alabama and Mississippi imitated the example of Georgia. These States were also partly occupied by Indian tribes, but under different circumstances. The right to the land, after the extinguishment of the Indian title, became vested in the United States - the States being created by act of Congress out of the public territory, and bound not to interfere with the public lands. In Alabama were the Creeks, a portion of the Cherokees, and a few Choctaws and Chicasaws. These two latter tribes, however, chiefly resided in Mississippi, and their relations with the United States were in the main, similar to those existing with the Cherokees. They were also far advanced in civilization.

Almost immediately after the inauguration of General Jackson, communications were made by the Executive to the Creeks and Cherokees, indicating the policy which would be in future pursued toward the Indian tribes, and the

views entertained by him, of the relations existing between them and the United States.

The letter to the Cherokee Council, together with the opinion of the Attorney General, and the memorial of that nation to Congress, and other documents containing the statements of both sides of the question, will be found among the Public Documents in the second part of this volume.*

From these papers it appeared, that the federal administration conceded to Georgia, full power as a sovereign State, to extend her civil and criminal jurisdiction over all the Indians within her limits; and that the treaties made with the United States, so far as they contravened this authority by guarantying the Indian title, were not binding upon the General Government, inasmuch as it had not a constitutional right to make such treaties. It was also asserted, that the Indian title was only a right to hunt, and consequently was temporary and subject to be abridged, whenever the country was wanted for the use of civilized man; that the right guarantied was a mere right of possession, and that the guarantee was never intended to be adverse to the sovereign right of Georgia. The State had hitherto been induced to forbear to act, in the expectation that some satisfactory arrangement would be made; but the course adopted in creating a Cherokee Government professing to be independent, was inconsistent with the political system of

the United States, and well calculated to excite apprehensions as to the extent of the aboriginal claims. The attitude thus assumed by the Cherokee Nation was one which was never contemplated and in which it could not be sustained by the Federal Government.

The Cherokee chieftains on their part contended, that the right of their tribe to its territory was anterior to all other claims, and had been recognised by the whites and guarantied by treaties; that their right of regulating their domestic affairs was equally undeniable and had never been surrendered; that they had taken. no part in the formation of the Constitution of the United States nor of the compact of 1802 with Georgia, and therefore were not bound by any of the provisions in those instruments or any construction put upon them; that if any difficulty resulted from inconsistent obligations, they should not be affected by it; and they suggested that it was easy for the State and Federal Governments to modify the compacts between them so as to preserve the honor of the United States, and to promote the happiness and prosperity of a people whose title to their territory was undeniable, whose interests were becoming identified with their white neighbors and who had been always ready to obey their call as friends and allies.

Had this controversy been confined to these parties, no difficulty probably would have grown out

123-145.

of the dispute. The obligations of the Government of the United States were too clear to permit any encroachment by any direct agency upon the Cherokee territory. This responsibility was assumed by the State Government. The act of Georgia, which was passed December 20th, 1828, * · provided for a division of the Cherokee country within the limits of the State into five portions and attached them to the five contiguous countries. The laws of Georgia were extended over the white residents within the territory and the Indians were declared to be subject after the first of June, 1830, to such laws as the Legislature might prescribe. The Cherokee laws and customs were declared to be void after the same period, and all Indians, or their descendants, residing within the nation, were declared to be incompetent, either as witnesses or parties in a suit wherein a white man was a party.

The harsh and arbitrary character of this law excited much feeling throughout the country; and the view which the new administration took of the obligations of the United States towards the Cherokees, when conflicting with the pretensions of Georgia, gave good ground for apprehension as to the ultimate fate of this tribe. Meetings were held in various parts of the Union for the purpose of remonstrating against the construction given by the Executive. o the treaties between the United States and the Cherokees. The Federal Government was declared to be bound to protect this

tribe from the encroachments of Georgia. The guarantee was intended as a substantial protection against all invasions upon the territory reserved, and especially against encroachments under the authority of States. The difficulties, which had grown out of the doubts as to the authority of Congress, under the articles of confederation were the inducement to invest the General Government with enlarged authority over this. subject under the Federal Constitution, and the encroachments which the inhabitants of Georgia had formerly made upon the Creeks and Cherokees croachments which had more than once produced hostilities between. them and the whiteswere the chief motives to giving the guarantee in question.

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