Excerpt from "Treaty with the Cherokee"
Published in Law and Treaties, edited by Charles J. Kappler, 1904
The Southern frontier tribes of the Cherokee, Creek, Choctaw, Chickasaw, and Seminole historically held large areas of land in the future states of Georgia, Alabama, Mississippi, Florida, Tennessee, and the Carolinas. The tribes lived in towns, farmed, and had capable leaders. By the early nineteenth century, they would be referred to as the Five Civilized Tribes because of their increasingly settled agricultural way of life.
Prior to the arrival of European colonists in the seventeenth century, it is estimated that some fifty thousand Cherokee lived in two hundred towns. The Cherokee controlled about forty thousand square miles of land, including portions of eight present-day states stretching from West Virginia to Alabama. By the mid-1600s, white traders venturing into the Appalachian Mountains from the colonial coastal settlements made contact with the Cherokee. Trade relations grew, and by the early 1700s, the Cherokee were trading thousands of deerskins each year for manufactured goods of metal, glass, and cloth. However, along with the trade came steady expansion of American settlements into traditional Cherokee territory.
By July 1776, the Cherokee had grown tired of U.S. advances into their lands, and they went to war with the United States. They attacked U.S. settlements along the borders of Georgia, Virginia, and the Carolinas. The Southern states quickly responded with a rare coordinated effort by their militias. Some six thousand militiamen were gathered, including twenty-five hundred from North Carolina and eighteen hundred Virginians. On the offensive, they destroyed numerous Cherokee towns and their crops. The Cherokee were essentially defeated by early 1777. They signed two treaties ceding (giving up) large amounts of land.
By late 1778, resentment was building again among the Cherokee over their lost lands. Rebel Cherokee gathered in the Chickamauga area of present-day Tennessee around the dynamic leader Dragging Canoe (c. 1730–1792). Adding to the explosive situation, the British supplied the growing Cherokee force with guns and ammunition. Dragging Canoe planned a major campaign for 1779. However, word of his plan leaked out, and a combined militia from Virginia and North Carolina launched a surprise attack. They captured most of the supplies and burned eleven Cherokee towns in the area. The Chickamauga Cherokee did not recover from these attacks until 1780. Dragging Canoe then led several attacks against U.S. settlements. In retaliation, a small force led by noted frontiersman and Native American fighter John Sevier (1745–1815) defeated a party of eighty Cherokee warriors; then he and a larger force of Virginia militiamen burned Cherokee villages, including those in the Chickamauga area.
After the American Revolution ended in 1783, American settlers from North Carolina moved westward in even greater numbers, settling in present-day Tennessee, land still held by the Cherokee in modern-day Tennessee. Further south, Georgia pressured the Creek Indians into signing one-sided treaties and thus gained control of their lands. Since North Carolina and Georgia still claimed lands in the Mississippi River valley, they asserted that the Confederation government had no authority to interfere in their Native American relations. Nonetheless, the U.S. government signed a series of three treaties at Hopewell on the Keowee River in South Carolina with the Cherokee as well as the Choctow and Chickasaw in November 1785 and January 1786, angering the Southern states. The treaties stated that any trespassers on Native American lands were subject to tribal punishment. In addition, those U.S. citizens who had settled on tribal lands were required to move. The treaties established boundaries between Native American and U.S. settlements. The United States was trying to halt the aggressive state actions. The states did not recognize the boundaries set in the treaties and allowed settlers to continue moving to the Native American side.
The Cherokee and the Creek finally resorted to war once more to protect their lands. The Creek raided U.S. settlements along the Georgia borders, killing over 80 settlers. The Cherokee attacked isolated settlements in the Cumberland and Knoxville areas. North Carolina assembled a militia under the command of Sevier to attack Cherokee towns. The fighting finally led to the Battle of Flint Creek in January 1789. At this battle, 145 Cherokee were killed. The Cherokee resistance declined after that.
President George Washington (1732–1799; served 1789–97) was eager to keep the peace in the South while the U.S. military focused on establishing control of the Northwest Territory. He therefore issued a proclamation in 1790 ordering American settlers along the Tennessee River to leave Cherokee territory. When the settlers refused to move, a force of Cherokee arrived to demand that the settlers obey the proclamation. Escalating conflict continued to harden Cherokee resistance to U.S. expansion.
Also in 1790, President Washington appointed William Blount (1749–1800) to be governor of the Southern Territory, the frontier region south of the Ohio River and west of the Appalachians. Blount had been a signer of the U.S. Constitution in 1787 as a Constitutional Convention delegate from North Carolina. That same year, Washington appointed Blount as superintendent of Indian Affairs for the Southern Territory, under authority of "An Act to Regulate Trade and Intercourse with the Indian Tribes."
President Washington directed Blount to sign a new treaty with the Cherokee. The resulting treaty was signed on the banks of the Holston River in the future state of Tennessee in July 1791. The treaty once again set boundaries between Cherokee and American settlements to ease conflicts. It also promoted the "civilization" program, with the intent of turning the Cherokee into landowning farmers (see the first excerpt in this chapter).
Things to remember while reading excerpts from "Treaty with the Cherokee":
- President Washington's primary goal in the 1791 treaty was to establish a lasting peace between the Cherokee and the United States.
- Besides establishing a boundary between Cherokee and U.S. settlements, the treaty provided for the release of prisoners held by both sides. It also provided for the prosecution of crimes through legal means rather than retaliation. In addition, the treaty required the Cherokee to inform U.S. officials if they learned of any plans by other Native Americans to attack U.S. citizens or settlements.
- The treaty makes it clear that the Cherokee were under the sole authority of the United States, including U.S. trade controls, and could not make treaties with foreign nations or with states.
- To ensure a boundary was well established between the Cherokee and American settlements, a survey delegation consisting of both Cherokee and U.S. citizens was to mark the boundary as described in the treaty.
- The United States promised the Cherokee that they could keep the lands identified for them for as long as they wished; the U.S. government also promised to get rid of squatters (people illegally living in the area), runaway criminals, and trespassers.
- Section 14 of the treaty introduced the "civilization" program by encouraging the Cherokee to adopt farming practices.
Excerpt from "Treaty with the Cherokee"
Treaty of Peace and Friendship made and concluded between the President of the United States of America, on the Part and Behalf of the said States, and the undersigned Chiefs and Warriors, of the Cherokee Nation of Indians, on the part and Behalf of the said Nation.
The parties being desirous of establishing permanent peace and friendship between the United States and the said Cherokee Nation, and the citizens and members thereof, and to remove the causes of war, byascertaining their limits and making other necessary, just and friendly arrangements: The President of the United States, by William Blount, Governor of the territory of the United States of America, south of the river Ohio, and Superintendent of Indian affairs for the southern district, who is vested with full powers for these purposes, by and with the advice and consent of the Senate of the United States. And the Cherokee Nation, by the undersigned Chiefs and Warriors representing the said nation, have agreed to the following articles, namely:
ARTICLE 1. There shall beperpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the whole Cherokee nation of Indians.
ARTICLE 2. The undersigned Chiefs and Warriors, for themselves and all parts of the Cherokee nation do acknowledge themselves and the said Cherokee nation, to be under the protection of the said United States of America, and of no othersovereign whosoever; and they alsostipulate that the said Cherokee nation will not hold any treaty with any foreign power, individual state, or with individuals of any state.
ARTICLE 3. The Cherokee nation shall deliver to the Governor of the territory of the United States of America, south of the river Ohio, on or before the first day of April next, at this place, all persons who are now prisoners, captured by them from any part of the United States: And the United States shall on or before the same day, and at the same place, restore to the Cherokees, all the prisoners now in captivity, which the citizens of the United States have captured from them.
ARTICLE 4. The boundary between the citizens of the United States and the Cherokee nation, is and shall be as follows: . ... [A lengthy description of the boundary between U.S. and Native American lands is provided using natural geographic features such as rivers and mountain ridges.]
And in order topreclude forever all disputes relative to the said boundary, the same shall beascertained, and marked plainly by three persons appointed on the part of the United States, and three Cherokees on the part of their nation.
And in order to extinguish forever all claims of the Cherokee nation, or any part thereof, to any of the land lying to theright of the line above described ... it is hereby agreed, that in addition to theconsideration heretofore made for the said land, the United States will cause certain valuable goods, to be immediately delivered to the undersigned Chiefs and Warriors, for the use of their nation; and the said United States will also cause the sum of one thousand dollars to be paid annually to the said Cherokee nation. And the undersigned Chiefs and Warriors, do hereby for themselves and the whole Cherokee nation, their heirs and descendants ... relinquish andcede, all the land to the right of the line described . ...
ARTICLE 5. It isstipulated and agreed, that the citizens and inhabitants of the United States, shall have a free andunmolested use of a road fromWashington district to Mero district, and of the navigation of the Tennessee river.
ARTICLE 6. It is agreed on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade.
ARTICLE 7. The United States solemnly guarantee to the Cherokee nation, all their lands not hereby ceded.
ARTICLE 8. If any citizen of the United States, or other person not being an Indian, shall settle on any of the Cherokees' lands, such person shall forfeit the protection of the United States, and the Cherokees may punish him or not, as they please.
ARTICLE 9. No citizen or inhabitant of the United States, shall attempt to hunt or destroy the game on the lands of the Cherokees; nor shall any citizen or inhabitant go into the Cherokee country, without apassport first obtained from the Governor of some one of the United States, or territorial districts, or such other person as the President of the United States may from time to time authorize to grant the same.
ARTICLE 10. If any Cherokee Indian or Indians, or person residing among them, or who shall take refuge in their nation, shall steal a horse from, or commit a robbery or murder, or other capital crime, on any citizens or inhabitants of the United States, the Cherokee nation shall be bound to deliver him or them up, to be punished according to the laws of the United States.
ARTICLE 11. If any citizen or inhabitant of the United States, or ofeither of the territorial districts of the United States, shall go into any town, settlement or territory belonging to the Cherokees, and shall there commit any crime upon, or trespass against the person or property of any peaceable and friendly Indian or Indians ... such offender or offenders, shall be subject to the same punishment, and shall be proceeded against in the same manner as if the offence had been committed within thejurisdiction of the state or district to which he or they may belong against a citizen or white inhabitant thereof.
ARTICLE 12. In case of violence on the persons or property of the individuals of either party, neither retaliation or reprisal shall be committed by the other, untilsatisfaction shall have been demanded of the party of ... theaggressor ... and shall have been refused.
ARTICLE 13. The Cherokees shall give notice to the citizens of the United States, of anydesigns which they may know, or suspect to be formed in any neighboring tribe, or by any person whatever, against the peace and interest of the United States.
ARTICLE 14. That the Cherokee nation may be led to a greater degree of civilization, and to becomeherdsmen and cultivators, instead of remaining in a state of hunters, the United States will from time to time furnishgratuitously ... useful implements ofhusbandry, and further to assist the said nation in so desirable a pursuit, and at the same time to establish a certain mode of communication, the United States will send ... so many persons to reside in said nation as they may judge proper, not exceeding four in number ... to act as interpreters. These persons shall have lands assigned by the Cherokees for cultivation for themselves and theirsuccessors in office; but they shall beprecluded exercising any kind oftraffic.
ARTICLE 15. Allanimosities for past grievances shall henceforth cease, andthe contracting parties will carry the foregoing treaty into full execution with all good faith and sincerity.
ARTICLE 16. This treaty shall take effect and beobligatory on the contracting parties as soon as the same shall have beenratified by the President of the United States, with the advice and consent of the Senate of the United States.
In witness of all ... the parties ... at the treaty ground on the bank of the Holston, near the mouth of the French Broad, within the United States, this second day of July, in the year of our Lord one thousand seven hundred and ninety-one.
What happened next ...
Just as with the 1785 treaties, American settlers refused to recognize the Cherokee lands described in the 1791 treaty. In response to the growing tension, less than a year after signing the treaty, Secretary Knox raised the amount of the annual payment promised to the Cherokee, from $1,000 to $1,500, in hopes of calming the situation.
Through the early 1790s, leaders of Spanish-controlled Florida helped organize a loose alliance of friendship among the Cherokee, Creek, Chickasaw, and Choctaw to combat U.S. expansion. Spain wanted to create a buffer between U.S. settlements and Spanish landholdings. Spain controlled lands west of the Mississippi River from New Orleans north to Canada. Spain also held land along the coast of the Gulf of Mexico from the Florida peninsula to present-day Louisiana.
Spanish troops supplied guns and ammunition to the Native Americans. Cherokee along with Creek and Shawnee attacked U.S. settlements in the Cumberland, Watauga, and Knoxville areas through 1792. In misguided retaliation, militia attacked a friendly village of Cherokee in the summer of 1793. The bloody attack only reinforced Cherokee resistance to U.S. settlement on Native American lands. The federal government was unable to send a U.S. force to quiet the region, but a private army of seven hundred fighters led by John Sevier defeated a band of Cherokee warriors and then burned Cherokee towns and slaughtered their cattle.
The beleaguered Cherokee once again signed a peace treaty in 1795, at a location called Tellico. Though the Cherokee ceded more lands in the treaty, American frontiersmen continued their relentless push, encroaching repeatedly on the remaining Cherokee lands. By 1803, more settlers were pressing in, this time from Georgia, and the Cherokee were forced to cede much more land. More treaties were signed between 1804 and 1806, leading to a prolonged peace.
During the War of 1812 (1812–15), some five hundred Cherokee joined the U.S. forces commanded by General Andrew Jackson (1767–1845). In 1813, they fought against Creek rebels referred to as Red Sticks. After the Red Sticks killed four hundred Americans at Fort Mims, the Cherokee guided and supported the U.S. forces as they pursued the Red Sticks. U.S. forces won a major victory at the Battle of Horseshoe Bend in Alabama on March 14, 1814. The remaining Creeks signed a treaty six months later, ceding a large part of the Alabama region.
Following the War of 1812, the Cherokee were involved in two landmark U.S. Supreme Court decisions heard by Chief Justice John Marshall (1755–1835). In 1829, the Georgia legislature passed a law extending state jurisdiction over Native American lands. The Cherokee sued, and the case went to the Supreme Court. In Cherokee Nation v. Georgia (1831), the Court ruled that Native American tribes residing within U.S. boundaries were not true foreign nations, but rather "domestic, dependent nations." This meant that, as dependent U.S. nations, Native American tribes could not sue, in essence, itself in federal courts. Congress, therefore, had complete power over Native American matters and would be in charge of resolving disputes. In Worcester v. Georgia (1832), the Cherokee won a major legal victory when the Court ruled that the state of Georgia could not encroach on Cherokee land. However, the victory was hollow, because President Andrew Jackson refused to enforce the Court's decision. The Cherokee's long struggle to protect their lands finally came to a close in 1838 when the remaining Cherokee were forced to move to lands set aside west of the Mississippi River. The legendary march of the Cherokee to this new location became known as the Trail of Tears.
Did you know ...
- In 1792, President Washington issued a proclamation offering a $500 reward for the capture of any person who killed any Cherokees in their western Georgia towns.
- The Cherokee were the largest single group of Native Americans to adopt an American way of life in an effort to survive the expansion of U.S. settlements. They abandoned their hunting culture and began farming; some even became plantation owners and held dozens of black slaves. Others became businessmen, managing stores, mills, and other businesses.
- Following the Battle of Horseshoe Bend, several hundred Cherokee continued to serve with General Jackson's force, fighting against and defeating the British in the Battle of New Orleans in January 1815.
- Recognizing that reading and writing were important for success in the white world, the Cherokee developed a native alphabet in the early 1820s.
- Gold was discovered in Cherokee lands in 1827. General Jackson sent troops to maintain order as miners streamed into Cherokee lands, but the troops were withdrawn upon request by Georgia.
- In an effort to strengthen their possession of lands in Georgia, the Cherokee adopted a written constitution patterned after the U.S. Constitution. In this document, they claimed political control of their remaining lands.
- Several thousand Cherokee began migrating to what became known as Arkansas in 1807. They went there hoping to retain their traditional way of life and avoid conflicts.
- William Blount served as superintendent of Indian Affairs until 1796, at which time Tennessee was admitted to the union as a state. Blount served as chairman of the committee that drafted Tennessee's first state constitution and was elected to represent Tennessee in the U.S. Senate in 1796. However, he was ousted the following year after being charged with trying to overthrow the Spanish authorities in Florida.
Consider the following ...
- American frontiersmen generally considered Native Americans simply another natural obstacle to the settlement of wild land. Do you think frontiersmen would have accepted Native Americans as neighbors if the Native Americans had more fully accepted a farming way of life through the "civilization" program?
- The nation's leaders were greatly influenced by the eighteenth-century ideas of the natural rights of man that grew out of what was known as the Enlightenment. The ideas of the Enlightenment included that human beings were rational beings who could interpret the world's events in a scientific manner and even influence them on occasion. Therefore, humans had natural rights to be free to pursue these ideas. U.S. officials were willing to extend these rights to Native Americans; but they believed Native Americans were men in an earlier stage of civilization and would need to be instructed or "civilized" by whites. Many, like Thomas Jefferson (1743–1826), thought the Native Americans could quickly "catch up" with some help from the new republic. Explain how the "civilization" program was supposed to work and why the Cherokee may have responded better than other North American tribes.
- Divide the class into two groups and debate the importance of expanding U.S. settlements versus the importance of retaining traditional Native American lands. Can you think of any solutions that might have resolved the conflict between the Native Americans and the frontiersmen?
Ascertaining their limits: Establishing boundaries of Native American and U.S. settlement.
Sovereign: Independent government.
Ascertained: Determined on the ground.
Consideration heretofore: Previous treaty agreements.
Unmolested: Not hindered, threatened, or assaulted.
Washington district to Mero district: Two early judicial districts in the region.
Passport: Official document allowing entrance into an area.
Either of the territorial districts of the United States: The Northwest and Southern Territories.
Jurisdiction: Area of legal authority.
Aggressor: Person or persons who committed the offense.
Designs: Plans to attack U.S. citizens or settlements.
Herdsmen and cultivators: Ranchers and farmers.
Gratuitously: For free.
Successors: Those who replace them.
Precluded exercising: Restricted from.
The contracting parties: Those signing the treaty.
For More Information
Ehle, John. Trail of Tears: The Rise and Fall of the Cherokee Nation. New York: Doubleday, 1988.
Jahoda, Gloria L. The Trail of Tears. New York: Wings Book, 1995.
Kappler, Charles J., ed. Law and Treaties. Washington, DC: Government Printing Office, 1904.
Sharpe, J. Edward. The Cherokees Past and Present: An Authentic Guide to the Cherokee People. Cherokee, NC: Cherokee Publications, 1996.
Rutledge, Wiley Blount, Jr.
RUTLEDGE, WILEY BLOUNT, JR.
A stalwart defender of civil liberties, Associate Justice Wiley B. Rutledge Jr., sat on the U.S.
Supreme Court for six years during the transitional new deal era. Rutledge was a distinguished law professor and dean who became a judge through his support of President franklin d. roosevelt. In 1939 Roosevelt named him to the U.S. Court of Appeals for the District of Columbia, and four years later to the Supreme Court. From 1943 until his death in 1949, Rutledge championed the rights of minorities and unpopular groups.
Born in Cloverport, Kentucky, on July 20, 1894, Rutledge was the son of a fundamentalist Baptist minister. His father, Wiley Sr., rode the backwaters of Kentucky preaching hellfire and brimstone, often with his son in tow. By his teens, however, Rutledge had left for the University of Wisconsin where he immersed himself in debate, classical literature, and ancient languages, earning a B.A. in 1914.
In his twenties, tuberculosis and financial trouble forced Rutledge to postpone the legal education he desired. Between 1915 and 1920, he supported himself and his wife, Annabel Person, by teaching high school in Indiana, New Mexico, and finally in Colorado, where he enrolled in a full-time law program at the state university. By 1922 he had earned his law degree, and immediately accepted a job with a Boulder firm. But he left practice two years later in order to embark on a fifteen-year long career as a law professor. He taught at three universities, promoted modern teaching methods, and ultimately served as dean at Washington University (1930–1935) and the Iowa College of Law (1935–1939). It was during these later years, while engaging in debate over local and national issues, that he developed a reputation as a champion of the underdog.
Rutledge was an ardent supporter of President Roosevelt's New Deal, a series of legislative reforms designed to pull the nation out of economic depression. Yet the U.S. Supreme Court struck down one after another of the president's programs. Roosevelt then announced his controversial plan to reorganize the federal judicial system—the so-called court-packing plan that would have filled even the Supreme Court with pro-Roosevelt justices. Rutledge backed it. In 1939 the president appointed him to the U.S. Court of Appeals for the District of Columbia, and in 1943 he appointed Rutledge to the Supreme Court.
Rutledge consistently upheld the rights of the individual, including the rights to a jury trial, to practice religion freely, to be free from unreasonable searches and seizures, and not to suffer cruel and unusual punishment. In his concurring opinion in Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943), he voted to restore citizenship to an immigrant who, twelve years after his naturalization, had been targeted for deportation by the justice department because of membership in the Communist Party. In Yamashita v. Styer, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499 (1946), Rutledge dissented from the denial of habeas corpus relief to Japanese general Yamashita Tomoyuki, who had been sentenced to death for war crimes on the basis of hearsay evidence.
"Precedent is not all controlling in law. There must be room for growth, since every precedent has an origin."
—Wiley Blount Rutledge Jr.
Rutledge regularly joined the opinions of Justices hugo l. black, frank murphy, and william o. douglas. He worked exhaustively, and, in the opinion of some of his brethren on the Court, too much. He died on September 10, 1949, in York, Maine, at the age of 54.