Baltimore– October 5. 1830.
I thank for your letter of the 2nd. inst. and concur with you entirely as to the best mode of solving the political problem with regard to the Indians within the bounds of the States– and as I am extremely unwilling that you should think me either so Quixotically weak or so diabolically wicked as to have excited this contest (of which some of the news-papers have accused me) I wish to inform you that I have impressed this very opinion on the Indians. While the delegation were yet with me, in consultation on this subject and several others which had grown out of their treaties, I addressed a letter to John Ross, the Principal Chief of the Cherokee Nation, in which, adverting to a florid description of the lands offered to them in the West in exchange for their lands in the States, which had been given by Colo. McKinney, the Superintendent of Indian affairs at Washington, to the Indian Board at New York, I say– "Admitting Mr. McKinney’s description (of that country) to be true, there are many in the U. S. who will think it your wisest course to remove– and I am among them– My own opinion is in favor of your right to remain and of your exemption from the laws of the neighbouring States. I think the right is your’s, also, on the other two questions that I have stated. But still if I could be assured that you woud gain, in exchange for your present lands, others of equal value, where you would never again be disturbed by the approach of the Whites, and where you and your descendants would be masters forever, and be permitted to grow and encrease, in peace, I, for one, would most strenuously advise you to go, and give up this heart-breaking contest." In answer he informs me that the country had been explored– that it was entirely unfit for agriculture, being destitute both of wood and water– that they would be surrounded by Savage tribes who would dispute the country with them, involve them in perpetual wars, break up all their plans of civilization, and compel them to relapse into barbarism in their own defense. In confirmation of his statement I perceive by the papers that that portion of the Cherokee Nation who have removed to that Country, are engaged in constant and bloody skirmishes with the Pawnees and Osages, with whom they are compelled to wage, in their own defense, a war of extermination–
My situation in the contest is one entirely unsought on my part, and is, in truth, a very painful one. The President having declared in favor of the right of Georgia to extend her laws over the Cherokees, will place the Supreme Court in a delicate and fearful predicament if they should differ from that opinion and the consequences, whatever they may be, will be charged to this controversy, which I shall be accused of having wickedly fomented– And yet, from the beginning, I have not been able to perceive how I could have shrunk from the part thus cast upon me, without admitting myself to be unworthy of my profession. There may be those who will think that it was my duty as a citizen of the U. S. to have yielded to the President’s construction of the treaties as leaving these people exposed to the right of legislation in Georgia; but you will observe that the act which he considers as having exposed them to this consequence is their having made a Constitution and laws within the limits of Georgia and to have admitted this consequence would have been a tacit admission of the criminality of all the preceding administrations, and all the preceding congresses in having encouraged them to do this very thing. Our illustrious friend Mr Jefferson directly encouraged it by the answer which he gave to the double deputation from the Cherokees, in 1808– That the treaty rights of other nations may be invaded by laws of the States was contemplated by the Constitution; hence the Supreme Court was invested with jurisdiction in controversies between a State and a foreign State– Article III § 2– and by the 6th. article treaties are declared to compose a part of the Supreme law of the land and the Judges in the several States are required to respect them, the constitution or laws of any state to the contrary notwithstanding. I cannot perceive, therefore, what political or moral impropriety there can be in a professional man’s expressing and defending, judicially, an honest opinion with regard to these treaty rights, thus clearly made a judicial question, altho’ he may have the misfortune to differ from the opinion of the executive branch of the government with regard to these rights– Had this affair been a private one personal to my self, I shd. not have presumed to trouble you with it. But it involves a great question of political morality in which the whole American Community is concerned, and I set too much store by your good opinion to leave the motives of my conduct in doubt.
The argument against the title of the Indians to their lands, compared with the argument in favor of our title to them, presents a most exquisite absurdity. It is said that they have no other title to those lands than having chased their game over them, or seen them from the tops of the distant mountains. And yet we contend that an English, Spanish– or french ship having sailed along the coast, or entered the mouth of a river, gives a complete title by discovery to the sovereign of the sailor, not only to the coast seen, but to the unseen interior up to the unknown heads of the rivers and even across to the Pacific! We say again that they can have no title but to so much land as they can now cultivate, without any regard to their increasing posterity: and yet we hold that we have a perfect title to millions upon millions of acres, confessedly beyond our present capacity for cultivation! Your view of the effect of their altered condition, as civilized agriculturalists, on the argument drawn from the writers on natural law which applied to them in their Savage State, is unanswerable, except by the new and strange ground now taken that they had no right to alter their condition and to become agriculturalists.
I ought to beg your pardon for troubling you with so long a letter– but I perceive that you take an interest in the subject– and I feel a deep interest in shewing you that I have done nothing to forfeit your good opinion– Yrs most faithfully
RC (DLC); letterbook copy (MdHi). RC docketed by JM.