AN OPINION ON THE CLAIMS FOR IMPROVEMENTS, BY THE STATE Of GEORGIA ON THE CHEROKEE
NATION UNDER THE TREATIES OF 1817 AND 1828
BY WILLIAM WIRT, ESQ.
In the state of things, came the treaty of 1819, which is declared on its face, to be a final adjustment of the treaty of 1817. By this treaty, the proposed census is waived by mutual consent; and the United States accept, from the Cherokees, a new cession of lands, by metes and bounds, (represented by the officers of the United States as amounting to 733,550 acres) which is declared to be in full satisfaction of all claims which the United States have on that nation, on account of the cession on Arkansas. By the 8th article, it is agreed that the boundary line, designated by the first article, shall be run by commissioners to be mutually appointed by the parties---and that the laws which have been made under the treaty of the 8th July 1817, of land lying within the portion of country reserved to the Cherokees to be void." Here is the surrender to the nation, contemplated by the treaty of 1817. For, the running of the line of this new cession would ascertain on which side of it the improvements would lie, and the lands surrendered to the Cherokees by that line, would carry with it the surrender of the improvements which stood upon them. The uncertainty as to this line, existing at the date of the treaty of 1817, which, alone, had been the cause that kept the ultimate title to these improvements in suspense, would be at an end, and the cause ceasing, the effect would cease with it. For why declare these leases void, if they might be immediately renewed? What conceivable motive could there be for declaring them void, except to disclaim any continuing authority in the United States to renew them? Of what possible service could their vacation be, either to the Cherokees or to the United States, if they might be reinstated by the United States the next instant?
And again, upon the supposition, how could this treaty be a of all claims under the treaty of 1817? How could the United States relinquish all claims on the Cherokees, and continue to lease out their lands? It must, I think, be manifest, to every impartial enquirer, that this is a clear surrender to the nation of all the improvements which should be found to lie within the lands reserved to them.
This conclusion is, again, fortified by a further consideration arising from the treaty of 1817. The United States were to continue to rent out these improvements, until they should be surrendered by the nation or to the nation. Is there anything in the treaty of 1819 which looks like a surrender by the nation to the United States of the improvements within the reserved lands? Not one syllable. And yet, this treaty, of 1819 is solemnly declared to be a final adjustment, if it still left the title to these improvements in the suspense in which they were placed by the treaty of 1817? But, if it were possible for human reason to answer this question in the affirmative, all that would be gained by it would be to continue that state of suspense; and it has been already shown that, in that condition, the state of Georgia had acquired no title to the possession of the lands: because there had been no extinguishment of the Indian title, to the universally received sense of such an extinguishment.
To me, it is perfectly clear that the treaty of 1819 is a surrender to the nation of all the improvements within their boundaries as established by that treaty; and, according to the express language of the 7th article of the treaty of 1817--"the Cherokee Nation are not to be called upon for any part of the consideration paid for said improvements at any future period."
It is true that the concluding stipulation of the 5th article of the treaty of 1819, "that all white people who have intruded, or may hereafter intrude on the lands reserved for the Cherokees shall be removed by the United States," has nothing to do with this question; not because the lessees of these improvements under the United States or the State of Georgia by the treaty of 1817 cannot be regarded as intruders; (though in truth if they were white persons they were intruders because they were there without title) but because the under that treaty, white people cannot be lessees of these improvements; the power being expressly confined to renting them "to the Indians." And since the power is derived solely from the treaty, it can be executed, only, according to the treaty. The provision with regard to the removal of intruders, related to a totally distinct subject, and is only the repetition of an engagement found in all the old treaties, as well as the new, and provided for by the act of 30th March, 1802, "to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers" to which this provision of the 6th article of the treaty of 1819 expressly refers. It is blending subjects of a different nature, which only tends to confound, to bring the provision with regard to white intruders to bear upon the question of renting improvements to the Indians themselves. Upon the whole if the determination be formed to take away their lands from these people, per fasaut nefas, all reasoning upon the subject becomes folly and mockery. But if the object be to ascertain fairly and candidly, the rights of the parties, and to claim only those rights, I think it will be manifest to every disinterested inquirer, that, whether considered under the treaty of 1817 or that of 1819, the State of Georgia has no right either to lands or improvements, within the territory reserved to the Indians by the latter treaty.
II. The second question arises under the 8th article of the treaty of 1808. this is a treaty between the United States and the Arkansas Cherokees. The Cherokees east of the Mississippi are not parties to it. This nation, originally one, had separated, as we have seen, by mutual consent in 1808--9; one part wishing to continue the hunter state and go west, in quest of game; and the other part "to engage in the pursuits of agriculture and civilized life, in the country they then occupied." This separation had been sanctioned and promoted by the President in 1809 and had been solemnly ratified by the treaties of 1817, and 1819. The two parts of these people thus became separate and distinct tribes and nations; as much so as if they had been distinguished by different names. Now the treaty of 1828 is, upon its face, expressly a treaty between the United States and "the Cherokee Nation of Indians west of the Mississippi." The object of the treaty was to induce these people to make another removal from their settlements on the Arkansas, and take in exchange, a grant of lands beyond the limits of the Unites States' territory of Arkansas. With subject the Cherokees east of the Mississippi, had nothing to do and the nation to the west had no more right to interfere with their lands than they had to interfere with the lands of their brethren on the Arkansas. But, in this treaty, there occurs an article (the 8th) in which the western Cherokees are made to present a plausible picture of the great advantages they were about to reap from this, their second migration, and then it is added-"that their brothers yet remaining in the States may be induced to join them and enjoy the repose and blessings of such a state in the future it is further agreed on the past of the U. States that to each head of a Cherokee family now residing within the chartered limits of Georgia, or either of the States east of the Mississippi, who may desire to remove west, shall be given, on enrolling himself for emigration, a good rifle, a blanket, and kettle, and five pounds of tobacco; and to each member of his family one blanket) also a just compensation for the property he may abandon to be assessed by persons to be appointed by the President of the United States." Other facilities for emigration are then added and finally a premium of fifty dollars for each person or head of a family he may take along with him provided he and they shall have emigrated from within the chartered limits of Georgia, and the opinion is maintained that by force of this article the United States acquired, by purchase, for the use of Georgia, all the land and improvements which the emigrants from the east had there abandoned, under the inducements held out by this article.
1. Now, the first reflection which presents itself on reading this article, is that it does not import a purchase at all. A series of inducements is held out to the individual Cherokees, who reside east of the Mississippi, to emigrate beyond the territory of Arkansas. The allurement of that residence is first held out to them- premiums of a specific property and money are added to these inducements-and, to overcome their natural reluctance to leave behind them the possessions they then enjoyed to the east of the Mississippi, they are assured that they shall suffer no loss on that account, but that the United States will pay them a just compensation for the property they may abandon--not for the property they may sell and convey to the United States nor even that "they may abandon to the United States" (which by the way would have been a very envious form of expression) but "for all the property they may abandon;" that is, that they may have derelict within the eastern nation. The terms are by no means, appropriate to the contract of sale. It is not conceivable that they are the terms which would have been selected, if a sale and purchase had been within the contemplation of the parties. There would have been some provision authorizing the United States to take possession of the property so left, under a contract of purchase; some provision authorizing them, either to occupy, or at least "to rent the property to the Indians, for the use of the poor and decrepit of their nation." But there is nothing which affords the slightest indication that the United States considered themselves as acquiring the property so to be abandoned. The event is contemplated of its being left by the emigrant Indians; and, in that condition it is viewed and treated and called property abandoned.
2. But suppose it to be a sale to the United States, of what is it a sale? of the property which the emigrants should leave behind them. What property could they leave behind them which was, in its nature, capable of alienation to anyone nor a member of the Indian nation? Their personal property only; that is, their horses, cattle, stock, agricultural implements &c. For, as to the lands which they had occupied, these belong to the whole nation, as a nation, and were capable of individual alienation to anyone except a member of that nation. The emigrant could sell only the title he held. And, according to the opinion of the Supreme Court of the United States (in the vase of Johnson and McIntosh, 8th Wheaton 593) the character of individual title to lands within the Cherokee Nation is concerned exclusively by their own laws and usages. But, according to their laws and usages there is no individual property in lands. The Indian who builds improvements on a piece of land acquires the exclusive right to use the lands, for one quarter of a mile around his improvements so long as he shall choose to occupy them. If he wishes to leave them, he may sell his improvements and right of occupancy to one of his own nation, but to n one else. If he abandons them for twelve months, without such a sale, the title reverts to the whole nation.
If therefore, the 8th article did contemplate a sale to the United States of the property which the emigrant should abandon (which it is quite apparent it did not) the sale could be only of such property as was alienable to personnel of the nation; and consequently, did not include land and improvements, which were not so alienable. Not does it vary the result that the United States is the supposed purchaser. For, in the first place the United States cannot alter the laws of the Cherokee Nation, except so far as they are authorized so to do by treaty. In the next place, even if the United States could alter those laws, it could be done, only, by an act of Congress, which is not pretended. It, surely, could not b e done by the President and Senate, in the form of a treaty, and that, too, a treaty made with another nation. So long as the Cherokees remain a sovereign nation, under the exclusive government of their own laws (which I have shown, in another opinion, that they are and have a right to be) their title to their lands cannot be extinguished, except by their own treaties, made by them as a nation, or by individuals of their nation authorized so to do by their own laws.
It is understood as being objected to this conclusion, that, according to the process of reasoning, which has led to it, if a majority of the Cherokee Nation should withdraw and receive compensation for their respective claims, the remnant however small would extend their title of occupancy over all the lands lying within the limits originally allotted to the whole; which, it is said,since the year 1808, seem not to have been the understanding either of this Government or of the particular tribe, whose rights are involved in this inquiry; and the treaties of 1817 and 1819 are cited in proof of this understanding; as well as of the policy by which the United States have encouraged the emigration of this tribe. To which I answer, that the case arising under the 8th article of the treaty of 1828, does not at all, fall within the policy which has prevailed since the year 1808, and which is illustrated by the treaties of 1817, and 1819. It is manifest, indeed, that the policy has been to encourage the emigration of this tribe; but, the means, heretofore, used to encourage it, have been perfectly legitimate, and in strict consonance with all the rights claimed for the Indians. The treaties of 1817 and 1819 were not treaties as contracted with individuals of the Cherokee Nation. They were treaties with the whole nation for the benefit of the entire nation. The cessions made by these treaties, were regular cessions by the whole nation, in its sovereign capacity; and the compensation received was a compensation to the nation. This was all fair and proper, and perfectly consistent with the constitution, laws, and political sovereignty asserted for the Cherokee Nation. But there never has been an understanding since the year 1808, not at any other time, that the sovereign right of the nation over their lands could be extinguished by private purchases from the individuals of the nation. With regard to the case put of a majority of the nation withdrawing and receiving compensation for their property, and the remaining remnant asserting a title to all the lands, lying within the limits originally allotted to the whole tribe,it presents no kind of difficulty; for the question still is whether the title belongs to the whole nation, collectively, or to the individuals of that nation, in their individual capacity. If to the former, as it unquestionably does, then however much the nation may be reduced either by death of emigration, those who remain will still compose the nation, and hold all the national rights. for, the rights of a sovereign nation do not depend on the number of its people. So long as they continue to be a sovereign nation, all the rights of the nation remain entire. Nor has there ever been an understanding, or a policy,since 1808, or at any other time, nor do the treaties of 1817 and 1819 illustrate any such policy or understanding, that the United States can extinguish the title of this nation in their lands, piecemeal by contracts made with individuals of the nation, without the concurrence of the nation itself. The treaties of 1817 and 1819, repeat it, were the acts of the entire nation, and afford neither precedent nor principle for the implied contract with individuals of the eastern nation, under an article contained in a treaty with the nation west of the Mississippi.
Upon the whole, I am of the opinion that the claim of Georgia to an acquisition
of lands, in the territory of the nation east of the Mississippi, by the 8th
article of the treaty of 1828, with the Cherokees on the Arkansas, is as totally
destitute of foundation as the claim under the first question.
Baltimore, June 21, 1830.