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 Cherokee Indians - June 2, 184.6 
 
 
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THE LIBRARY OF THE 
 
 UNIVERSITY OF 
 
 NORTH CAROLINA 
 
 THE COLLECTION OF 
 
 NORTH CAROLINIANA 
 
 ENDOWED BY 
 
 JOHN SPRUNT HILL 
 
 CLASS OF 1889 
 
 Cp970.03 
 U58o22 
 
 UNIVERSITY OF N.C. AT CHAPEL HILL 
 
 00032204891 
 
 This book must not 
 be taken from the 
 Library building. 
 
20th Congress, R e p. No. 6S3. Ho. of Rfps 
 
 1st Session. 
 
 CHEROKEE INDIANS. 
 
 [To accompany bill H. R. No. 456.] 
 
 JuxNE 2, 1S46. 
 
 Mr. Jacob Thompson, from the Committee on Indian Affairs, made the 
 
 following 
 
 REPORT : 
 
 The Committee on Indian Affairs, to whom were referred the message of 
 the President of the United States, relative to Cherokee difficulties, with 
 the accompanying papers, and also the memorial of John Ross and 
 others, as the representatives of the Cherokee ?ialion, have had the same 
 under consideration, and beg leave to sub/nit the following report : 
 
 The Cherokees residing west of the State of Arkansas are divided into 
 three distinct parties, or factions, well known and distinguished by the 
 terms of "old settlers," " treaty party," and .'^anti-treaty, or Ross party." 
 The " old settlers" and "treaty party," togibttier, constitute about one- 
 third of the Cherokee nation ; and of course all the political power of the 
 government is held and exercised by the anti-treaty or Ross party. The 
 manner in which this power was obtained, and is now exercised, is the 
 fruitful source of the discontents and complaints which have been brought 
 to the consideration of Congress. 
 
 The old settlers, who were the pioneers of the Cherokee people, who had 
 long claimed to be a distinct and independent community, and who aver 
 that they believed the whole country known as the Cherokee nation, with 
 the exception of the 800,000 acres which have been acquired since the 
 year 1835, to be rightfully vested exclusively in them, are restive, and 
 submit with great impatience to rulers chosen by strangers and intruders, 
 and to laws enacted without their consent. The treaty party represent 
 themselves as feeling no security of person or property, under the admin- 
 istration of the dominant party. Many of their leaders, endeared to them 
 in a thousand ways, have been cruelly murdered, and the perpetrators of 
 the murders have escaped unpunished. They are, for the most part, de- 
 nounced as " traitors," and the sentence of outlawry has been passed 
 upon them. Day after day witnesses the shedding of blood, and the cries 
 of lamentation and distress are heard throughout the land. Some of this 
 party are in a state of banishment, and a large portion of them having fled 
 their country, are now actually supported by the charity of the United 
 States. 
 
 A conviction of their own weakness, and of the necessity of union, 
 connected with the oppression and injustice which they suppose them- 
 selves alike to have endured at the hands of the dominant party, has pro- 
 Ritchie & Heiss, printers- 
 
 ?> (oQ 6 X 
 
2 Rep. No. 68S. 
 
 duced a strong community of feeling— a deep sympathy for each other? 
 collectively and individually, between the "old settlers" and the " treaty 
 party." To the individual Indians who compose these two parties, the 
 government of the United States is largely indebted ; and to abandon them 
 now to be despoiled of every right which they have heretofore enjoyed, 
 voluntarily to leave them the subjects of a reign of terror, liable at any 
 moment to be stripped of property or life, without recourse, would be an 
 act of the most flagrant injustice and the grossest ingratitude. 
 
 It has long been a cherished policy on the part of the United States to 
 remove the Cherokees from the States east of the Mississippi river to a 
 country west, beyond the jurisdiction of any State or Territory. The 
 "old settlers," at an early day, cheerfully came into the views of the gov- 
 ernment, and contributed their influence and example in effectuating its 
 purposes. These kind services should be remembered, and the claims of 
 these persons upon our protection and guardian care must be favorably 
 considered. 
 
 Before the treaty of 1835, the Cherokee council had issued a decree 
 that any individual of that tribe who should sign a treaty for the cession 
 of the Cherokee country should be considered as a traitor, and as such 
 should be regarded as an outlaw. Notwithstanding this sentence and 
 fearful penalty, after the Cherokee nation was involved in the most per- 
 plexing difficulties with the State of Georgia, which, if persisted in, were 
 calculated to disturb the peace and good feeling of the people of the whole 
 Union; and after it became evident that to remain longer in their old 
 country was destructive tojheir prosperity, and even of their national ex- 
 istence, and that the onlylpeans of saving their own people, and of re- 
 moving from the States and the general government the perplexing ques- 
 tions of conflicting jurisdictions which had sprung out of their remain- 
 ing on this side of the Mississippi river, was to treat for the cession of all 
 their country within the States ; the treaty party, with a firmness of nerve 
 and a purity of purpose which reflected upon them high honor, came 
 forward, at the most earnest solicitation of the United States, entered into 
 a treaty in the year 1835, in the face of the most violent opposition; braved 
 the most unmeasured denunciations ; and, in this manner, enabled our 
 government to avoid a conflict which threatened to shake our institutions 
 to their very fogpdation. The committee feel unwilling that these indi- 
 viduals should suffer at the hands of a vindictive majority, for acts per- 
 formed at our instance, as long as we possess the power to threw our 
 shield of protection over them. 
 
 These " old settlers" and " treaty party" appeal to us to save them 
 from the evil effects of domestic strife — to give them a country where 
 hey may live under their own laws, customs, and head-men, unmolested 
 by a domestic foe who seeks their destruction — to deliver them from op- 
 pression and misrule, which, if not arrested, must end in their annihilation. 
 The facts which they set forth, and on which they rely, to sustain them 
 in their prayer, are satisfactorily proven by the mass of testimony sub- 
 mitted to the committee. The reasonableness and justness of this appeal, 
 therefore, readily commend its adoption; and a bill is herewith reported for 
 the appointment of three commissioners, to make an equitable division of 
 the country between them and the Ross party. 
 
 As to the policy and good effects of this dismemberment of the nation, 
 there can be but one opinion : division must be made ; this people must 
 
Rep. No. 683. „ « / 3 
 
 OfV»- 
 
 be separated; the continuance of the present social compact, unchecked 
 and unrestrained as it exists at present, will inevitably end in the final 
 destruction of the minority parties. On this subject the committee are 
 unanimous. 
 
 The only question that can be raised, that deserves serious considera- 
 tion, is the one relied upon in the memorial of John Ross and others, who 
 claim that the Cherokee nation is one community — who have guarantied 
 to them, by solemn treaty, the right to "establish and enjoy a government 
 of their choice, and to perpetuate such a state of society as may be con- 
 sonant with their views, habits, and conditions, and as may tend to their 
 individual comfort, and their advancement in civilization ;" and from this 
 treaty stipulation they deny to Congress all power whatever to divide the 
 country between any bands or parts of the nation. They refer to that 
 clause of the treaty wherein " the United States agree to protect the Cher- 
 okee nation from domestic strife and foreign enemies, and against intes- 
 tine wars between the several tribes;" and consider it similar to that pro- 
 vision of the constitution which says, " the United States shall guaranty 
 to every State in this Union a republican form of government, and shall 
 protect each of them against invasion, and, on application of the legisla- 
 ture or of the executive, (when the legislature cannot be convened,) 
 against domestic violence." They then proceed with the argument: 
 " It cannot be pretended that such interposition can be made by the fed- 
 eral government upon the application of an individual citizen, or any 
 number of the citizens of a State, complaining that the laws of the State 
 are oppressive, or that they are oppressively administered or executed : 
 such an interpretation would annihilate State sovereignties, and would 
 inevitably excite the domestic strife it pretended to suppress." The com- 
 mittee have desired to present, in all fairness, the position taken by the 
 dominant party of the Cherokee nation, because they feel unwilling to 
 violate the constitution or to assume power to accomplish the most cher- 
 ished object. But the whole argument is based upon a most palpable 
 error. Indian nations are not sovereign States or independent govern- 
 ments; on the contrary, they have ever been considered as dependants: 
 the fee simple of the very land they occupy is vested in the United States, 
 and the Indian occupies the position of the ward, and the United States 
 as the guardian and protector. 
 
 It is true that, time after time, treaties have been made with the dif- 
 ferent tribes, which have been conducted and ratified with all the form 
 and circumstance pertaining to a similar arrangement with the most pow- 
 erful nation on earth : but, in all this, there has been exhibited a strange 
 anomaly in the science of diplomacy. The United States never have 
 treated with an Indian nation as an equal. Our commissioners draw iip 
 the treaties — our authorities construe them — our agents execute them, 
 and our sense of right and our views of good policy have ever prevailed, 
 and in no position have we forgotten that they are the weaker, the de- 
 pendant party ; that these treaties are to be construed as contracts, and 
 that interpretation is to be adopted which is most favorable to the Indian 
 interests, and most conducive to his happiness and advancement. And 
 in the history of this very tribe of Indians, we have a most striking ex- 
 ample of the interference of our government for the contentment and hap- 
 piness of the Cherokees. Near thirty years ago, a difference between the 
 various bands of this tribe manifested itself, growing out of the preference 
 
4 Rep. No. 683. 
 
 of the one party for the chase and the hunter's life, and of the other for 
 agriculture and the arts of civilization ; and this led to a treaty, by virtue 
 of which the different parties voluntarily separated, and a distinct and 
 far distant country was assigned to the then emigrating party, and to 
 such as might be induced" to follow. It is true that this appears to 
 have been done by the mutual consent of all the Cherokee people. 
 But no one can doubt that the same thing would have been allowed 
 and sanctioned upon the petitions of the one side and the protest of 
 the other. And in the present case no one could doubt that it would 
 be clearly within the range of our discretion to invite these minority and 
 oppressed parties to leave their country altogether, and to locate on another 
 and different tract of country. This appears to the committee so self-ev- 
 ident that all argument would be superfluous. Then let us suppose that 
 the present Cherokee country is vested in all the tribe, and held by them 
 as tenants in common ; can any one entertain a reasonable doubt that, 
 should Congress believe a division of the country between the different 
 bands or factions is necessary to save them from domestic strife, to secure 
 to them life and the untrammelled pursuit of happiness, to give them con- 
 tentment, and advance them in civilization, they have not the power? On 
 the contrary, would not a refusal or a failure to act, in view of the conse- 
 quences, be in the highest degree culpable ? and, should blood be shed, 
 and the happiness of a people destroyed by this omission, with what jus- 
 tice could we claim to be guiltless, and to hold our skirts to be clear? 
 The position we occupy, of guardian to this people, and the obligation 
 we have taken upon ourselves to protect them from domestic strife, impose 
 upon us the duty of affording some remedy for existing evils ; and, in the 
 estimation of the committee, none is more plausible or more effective than 
 a division of the country, and a separation of these embittered parties, 
 leaving each to make their own laws, adopt their own customs and forms 
 of government, and choose their own head men and rulers. 
 
 It has been the uniform custom of the government of the United States, 
 during the whole course of its history, to deprive no Indian tribe of the 
 land of which they were found possessed, without first obtaining their 
 consent in some satisfactory form. Possessed of unlimited power, the 
 United States has exercised it with delicacy, forbearance, and a due re- 
 gard for the feelings, interests, and even prejudices and superstitions, of 
 the Indians ; nor could your committee now give their assent to any other 
 line of policy. They would be unwilling that our government, should 
 expel the Cherokee people from one acre of the land assigned them, in 
 order to make way for the settlement of our own citizens. But in this di- 
 vision the United States is a disinterested party. A common inheritance 
 is to be divided by a paternal guardian between the heirs, who are embit- 
 tered and deadly hostile to each other, in or^ler to restore to them peace, 
 contentment, personal security, and prosperity. 
 
 In the bill reported by the committee, a change in the intercourse laws 
 is proposed, for the purpose of the more effectual suppression of vice and 
 certain punishment of crime. The outrages upon all law and humanity 
 which have been committed in the Cherokee country, and have passed 
 away in many instances without investigation, and seldom with the pun- 
 ishment of the offenders, have rendered this change necessary and proper; 
 and the more so, when there are plausible grounds not wanting to suspect 
 the Cherokee authorities of instigating, or at least conniving at, the com- 
 
Rep. No. 683. 5 
 
 mission of these crimes. But the question is again raised, has Congress 
 the power to make the proposed change in the intercourse laws, so as to 
 confer upon the federal courts the power of trying an Indian for offences 
 committed, against the person and property of an Indian, and to make the 
 same applicable to the Cherokee nation ? The treaty of 1S35 is relied 
 upon as limiting the power of Congress over this subject ; and it is true, 
 that, by the fifth article of this treaty, it is agreed that the United States 
 will secure to the Cherokee nation the right of their national councils to 
 make and carry into effect such laws as they may deem necessary for the 
 government and protection of the persons and property within their own 
 country, belonging to their people. But a proviso immediately follows, 
 that such laws shall not be inconsistent with the constitution of the Uni- 
 ted States, and such acts of Congress as had been or might be passed, reg- 
 ulating trade and intercourse with the Indians. 
 
 At the December term of the Supreme Court of the United States, for 
 the year 1845, in the case of the United States vs. Rogers, which came 
 up from the State of Arkansas upon a certificate of division between the 
 justices who held the circuit court of that State, this identical point was 
 made ; and Chief Justice Taney delivered the opinion of the court in 
 these terms : 
 
 " It is our duty to expound and execute the law as we find it ; and we 
 think it too firmly and clearly established to admit of dispute, that the In- 
 dian tribes residing within the territorial limits of the United States are 
 subject to their authority : and when the country occupied by them is 
 not within the limits of one of the States, Congress may by law punish 
 any offences committed there, no matter whether the offender be a white 
 man or an Indian." 
 
 This opinion of the court covers the whole ground, and supersedes the 
 necessity of further argument on the part of the committee. 
 
 Provision is also made in the bill reported for the emigration and sub- 
 sistence of those Cherokees who still remain in the State of North Caro- 
 lina ; and an election between the parties is given to the emigrating Chero- 
 kee on his arrival among his brethren in the west, and he is allowed to 
 settle down and affiliate with that band or division which he may prefer. 
 This is an act of sheer justice, not only to the unfortunate Indian who 
 lingers behind away from his brethren, but also to the State of North Car- 
 olina, which has been burdened and molested with this population. And 
 to this section no objection is anticipated. 
 
 The committee omit, by design, the expression of any opinion as to the 
 claims for money which are set up by the different parties. This whole 
 matter is now a subject of investigation in the War Department, and no 
 satisfactory conclusion could be attained without further and more defi- 
 nite information. 
 
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