CESSION OF A PART OF THE TERRITORY OF ARKANSAS TO THE CHEROKEE
INDIANS.
Arkansas was an organized territory, and had been so since the
year 1819. Her western boundary was established by act of Congress
in May 1824 (chiefly by the exertions of her then delegate, Henry
W. Conway),--and was an extension of her existing boundary on
that side; and for national and State reasons. It was an outside
territory--beyond the Mississippi--a frontier both to Mexico (then
brought deep into the Valley of the Mississippi by the Florida
treaty which gave away Texas), and to the numerous Indian tribes
then being removed from the South Atlantic States to the west of
the Mississippi. It was, therefore, a point of national policy to
make her strong--to make her a first class State,--both for her own
sake and that of the Union,--and equal to all the exigencies of her
advanced and frontier position. The extension was on the west--the
boundaries on the other three sides being fixed and immovable--and
added a fertile belt--a parallelogram of forty miles by three
hundred along her whole western border--and which was necessary to
compensate for the swamp lands in front on the river, and to give
to her certain valuable salt springs there existing, and naturally
appurtenant to the territory, and essential to its inhabitants. Even
with this extension the territory was still deficient in arable
land--not as strong as her frontier position required her to be,
nor susceptible (on account of swamps and sterile districts) of
the population and cultivation which her superficial contents and
large boundaries would imply her to be. Territorially, and in mere
extent, the western addition was a fourth part of the territory:
agriculturally, and in capacity for population, the addition might
be equal to half of the whole territory; and its acquisition was
celebrated as a most auspicious event for Arkansas at the time that
it occurred.
In the month of May, 1828, by a treaty negotiated at Washington by
the Secretary at War, Mr. James Barbour, on one side, and the chiefs
of the Cherokee nation on the other, this new western boundary
for the territory was abolished--the old line re-established:
and what had been an addition to the territory of Arkansas, was
ceded to the Cherokees. On the ratification of this treaty several
questions arose, all raised by myself--some of principle, some of
expediency--as, whether a law of Congress could be abolished by
an Indian treaty? and whether it was expedient so to reduce, and
thus weaken the territory (and future State) of Arkansas? I was
opposed to the treaty, and held the negative of both questions, and
argued against them with zeal and perseverance. The supremacy of
the treaty-making power I held to be confined to subjects within
its sphere, and quoted "Jefferson's Manual," to show that that was
the sense in which the clause in the constitution was understood.
The treaty-making power was supreme; but that supremacy was within
its proper orbit, and free from the invasion of the legislative,
executive, or judicial department. The proper objects of treaties
were international interests, which neither party could regulate
by municipal law, and which required a joint consent, and a
double execution, to give it effect. Tried by this test, and this
Indian treaty lost its supremacy. The subject was one of ordinary
legislation, and specially and exclusively confined to Congress.
It was to repeal a law which Congress had made in relation to
territory; and to reverse the disposition which Congress had made
of a part of its territory. To Congress it belonged to dispose of
territory; and to her it belonged to repeal her own laws. The treaty
avoided the word "repeal," while doing the thing: it used the word
"abolish"--which was the same in effect, and more arrogant and
offensive--not appropriate to legislation, and evidently used to
avoid the use of a word which would challenge objection. If the word
"repeal" had been used, every one would have felt that the ordinary
legislation of Congress was flagrantly invaded; and the avoidance
of that word, and the substitution of another of the same meaning,
could have no effect in legalizing a transaction which would be
condemned under its proper name. And so I held the treaty to be
invalid for want of a proper subject to act upon, and because it
invaded the legislative department.
The inexpediency of the treaty was in the question of crippling and
mutilating Arkansas, reducing her to the class of weak States, and
that against all the reasons which had induced Congress, four years
before, to add on twelve thousand square miles to her domain; and
to almost double the productive and inhabitable capacity of the
Territory, and future State, by the character of the country added.
I felt this wrong to Arkansas doubly, both as a neighbor to my own
State, and because, having a friendship for the delegate, as well
as for his territory, I had exerted myself to obtain the addition
which had been thus cut off. I argued, as I thought, conclusively;
but in vain. The treaty was largely ratified, and by a strong
slaveholding vote, notwithstanding it curtailed slave territory, and
made soil free which was then slave. Anxious to defeat the treaty
for the benefit of Arkansas, I strongly presented this consequence,
showing that there was, not only legal, but actually slavery upon
the amputated part--that these twelve thousand square miles were
inhabited, organized into counties, populous in some parts, and
with the due proportion of slaves found in a southern and planting
State. Nothing would do. It was a southern measure, negotiated, on
the record, by a southern secretary at war, in reality by the clerk
McKinney; and voted for by nineteen approving slaveholding senators
against four dissenting. The affirmative vote was: Messrs. Barton,
Berrien, Bouligny, Branch, Ezekiel Chambers, Cobb, King of Alabama,
McKinley, McLane of Delaware, Macon, Ridgely, Smith of Maryland,
Smith of South Carolina, John Tyler of Virginia, and Williams of
Mississippi. The negative was, Messrs. Benton, Eaton, Rowan, and
Tazewell.--Mr. Calhoun was then Vice-President, and did not vote;
but he was in favor of the treaty, and assisted its ratification
through his friends. The House of Representatives voted the
appropriations to carry it into effect; and thus acquiesced in the
repeal of an act of Congress by the President, Senate, and Cherokee
Indians; and these appropriations were voted with the general
concurrence of the southern members of the House. And thus another
slice, and a pretty large one (twelve thousand square miles), was
taken off of slave territory in the former province of Louisiana;
which about completed the excision of what had been left for slave
State occupation after the Missouri compromise of 1820, and the
cession to Texas of contemporaneous date, and previous cessions
to Indian tribes. And all this was the work of southern men, who
then saw no objection to the Congressional legislation which acted
upon slavery in territories--which further curtailed, and even
extinguished slave soil in all the vast expanse of the former
Louisiana--save and except the comparative little that was left in
the State of Missouri and in the mutilated Territory of Arkansas.
The reason of the southern members for promoting this amputation of
Arkansas in favor of the Cherokees, was simply to assist in inducing
their removal by adding the best part of Arkansas, with its salt
springs, to the ample millions of acres west of that territory
already granted to them; but it was a gratuitous sacrifice, as the
large part of the tribe had already emigrated to the seven millions
of acres, and the remainder were waiting for moneyed inducements
to follow. And besides, the desire for this removal could have
no effect upon the constitutional power of Congress to legislate
upon slavery in territories, or upon the policy which curtails the
boundaries of a future slave State.
I have said that the amputated part of Arkansas was an organized
part of the territory, divided into counties, settled and
cultivated. Now, what became of these inhabitants?--their property?
and possessions? They were bought out by the federal government!
A simultaneous act was passed, making a donation of three hundred
and twenty acres of land (within the remaining part of Arkansas),
to each head of a family who would retire from the amputated part;
and subjecting all to military removal that did not retire. It was
done. They all withdrew. Three hundred and twenty acres of land in
front to attract them, and regular troops in the rear to push them,
presented a motive power adequate to its object; and twelve thousand
square miles of slave territory was evacuated by its inhabitants,
with their flocks, and herds, and slaves; and not a word was said
about it; and the event has been forgotten. But it is necessary to
recall its recollection, as an important act, in itself, in relation
to the new State of Arkansas--as being the work of the South--and as
being necessary to be known in order to understand subsequent events.