The case was carried up on a writ of error to the Supreme Court of the United States, and that court asserted its jurisdiction. In rendering its decision the court remarks that the principle that discovery of parts of the continent of America gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession, was acknowledged by all Europeans because it was the interest of all to acknowledge it, and because it gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it, but not one which could annul the rights of those who had not agreed to it. It regulated the rights of the discoverers among themselves, but could not affect the rights of those already in possession as aboriginal occupants. It gave the exclusive right of purchase, but did not found it on a denial of the right of the possessor to sell. The United States succeeded to all the claims of Great Britain, both territorial and political. Soon after Great Britain had determined on planting colonies in America the King granted sundry charters to his subjects. They purport generally to convey the soil from the Atlantic to the South Sea. The soil was occupied by numerous warlike nations, milling and able to defend their possessions. The absurd idea that feeble settlements made on the sea-coast acquired legitimate power to govern the people or occupy the lands from sea to sea did not then enter the mind of any man. These charters simply conferred the right of purchasing such lands as the natives were willing to sell. The acknowledgment of dependence made in the various Cherokee treaties with Great Britain and the United States merely bound them as a dependent ally claiming the protection of a powerful friend and neighbor and receiving the advantages of that protection, without involving a surrender of their national character. Neither the Government nor the Cherokees ever understood it otherwise. Protection did not imply the destruction of the protected.
Georgia herself had furnished conclusive evidence that her former opinions on the subject of the Indians concurred with those entertained by her sister States and by the Government of the United States. Various acts of her legislature had been cited in the argument of the case, including the contract of cession made in 1802, all tending to prove her acquiescence in the universal conviction that the Cherokee Nation possessed a full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line established by treaties; that within their boundary they possessed rights with which no State could interfere, and that the whole power of regulating the intercourse with them was vested in the United States. The legislation of Georgia on this subject was therefore unconstitutional and void.[372]
Georgia refuses to submit to the decision of the Supreme Court.—Georgia refused to submit to the decision and alleged that the court possessed no right to pronounce it, she being by the Constitution of the United States a sovereign and independent State, and no new State could be formed within her limits without her consent.
President Jackson's dilemma.—The President was thus placed between two fires, Georgia demanding the force of his authority to protect her constitutional rights by refusing to enforce the decision of the court, and the Cherokees demanding the maintenance of their rights as guaranteed them under the treaty of 1791 and sustained by the decision of the Supreme Court.
It was manifest the request of both could not be complied with. If he assented to the desire of the Cherokees a civil war was likely to ensue with the State of Georgia. If he did not enforce the decision and protect the Cherokees, the faith of the nation would be violated.[373] In this dilemma a treaty was looked upon as the only alternative, by which the Cherokees should relinquish to the United States all their interest in lands east of the Mississippi and remove to the west of that river, and more earnest, urgent, and persistent pressure than before was applied from this time forward to compel their acquiescence in such a scheme.
DISPUTED BOUNDARIES BETWEEN CHEROKEES AND CREEKS.
Mention has already been made in discussing the terms of the treaty of September 22, 1816, of the complications arising out of the question of disputed boundaries between the Cherokees, Creeks, Choctaws, and Chickasaws. These disputes related chiefly to an adjustment of boundaries within the Territory of Alabama, rendered necessary for the definite ascertainment of the limits of the Creek cession of 1814. But as a result of the Cherokee cession of 1817 and the Creek cessions of 1818, 1821, 1826, and 1827, the true boundary between the territories of these two latter nations became not only a matter of dispute, but one that for years lent additional bitterness to the contest between the people of Georgia and the Indians, especially the Cherokees. Prior to the Revolution, the latter had claimed to own the territory within the limits of Georgia, as far south as the waters of Broad River, and extending from the headwaters of that river westward. Some of this territory was also claimed by the Creeks, and the British Government had therefore in purchasing it accepted a cession from those tribes jointly.[374]
At the beginning of the Federal relations with the Cherokees, a definition of their boundaries had been made by treaty of November 28, 1785, extending on the south as far west as the headwaters of the Appalachee River. Beyond that point to the west no declaration as to the limits of the Cherokee territory was made, because, for the purposes of the Federal Government, none was at that time necessary. But when in course of time other cessions came to be made, both by the Cherokees and Creeks, it began to be essential to have an exact definition of the line of limits between them. Especially was this the case when, as by the terms of the Creek treaty of February 12, 1825,[375] they ceded all the territory to which they laid claim within the limits of Georgia, and although this treaty was afterwards declared void by the United States, because of alleged fraud, Georgia always maintained the propriety and validity of its negotiation.
As early as June 10, 1802, a delegation of Cherokees interviewed Colonel Hawkins and General Pickens, and after demanding the removal of certain settlers claimed to be on their lands, asserted the boundary of their nation in the direction of the Creeks to be the path running from Colonel Easley's, at High Shoals of the Appalachee, to Etowah River. This they had agreed upon in council with the Creeks. A delegation of the Creeks, whom they brought with them from the council, were then interrogated on the subject by Messrs. Hawkins and Pickens, and they replied that the statement of the Cherokees was correct.
In the spring of 1814 (May 15) Agent Meigs had written the Secretary of War that the Cherokees were sensible that the Creeks ought to cede to the United States sufficient land to fully compensate the latter for the expenses incurred in prosecuting the Creek war. However, they (the Cherokees) were incidentally interested in the arrangements, and hoped that the United States would not permit the Creeks to point out the specific boundaries of their cession until the division line between the two nations had been definitely determined. In the following year, in a discussion of the subject with Colonel Hawkins, the Creek agent, Colonel Meigs declares that the Cherokees repel the idea entertained by the Creeks that the Cherokee or Tennessee River was ever their southern boundary. On the contrary, the dividing line between the territories of the two nations should begin at Vann's Old Store, on the Ocmulgee River, thence pursuing such a course as would strike the Coosa River below the Ten Islands. This claim was predicated upon the assertion that the Cherokees had in the course of three successive wars with the Creeks driven them more than a degree of latitude below the point last named. Another Cherokee version was to the effect that at a joint council of the two nations, held prior to the Revolutionary War, the boundary question was a subject of discussion, when it was agreed to allow the oldest man in the Creek Nation to determine the point. This man was James McQueen, a soldier who had deserted from Oglethorpe's command soon after the settlement of Savannah. McQueen decided that the boundary should be a line drawn across the headwaters of Hatchet and Elk Creeks, the former being a branch of the Coosa and the latter a tributary of the Tallapoosa. This decision was predicated upon the fact that the Cherokees had driven the Creeks below this line, and it had been mutually agreed that it should constitute the boundary.