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Rights of Indians

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Source Name Image(s)
CollectionBoston Public Library: Chamberlain Collection view image
Document Information
Date January 16, 1797
Author Name James McHenry (primary) Location: War Office
Recipient Name Dwight Foster (primary)
Summary Indians and Indian warfare; describes 1706 treaty with Chickasaws; United States responsibility to Indians; mentions White encroachment.
Document Format Autograph Letter Signed
Document Notes [not available]
Content Notes [not available]
Related Persons/Groups Dwight Foster; James McHenry; Colbert; Chickasaws; Creeks; Indian; Indian Nation; tribes; troops; Negros; settlers; Spanish; ;
Related Places War Office; Spain; United States; Tennessee; territory; frontier; land; fort; ;
Keywords treaty; ;
Key Phrases protection in this treaty has reference chiefly if not wholly to that object; surrender made by them in the treaty of a part of their land on which they were accustomed to hunt was to be the price of protection of the remainder; construction; conformable to indian feelings and views; military succours in cases of indian invasions been contemplated by the parties; words introduced into the treaty expressive of the intention; find itself engaged in a war; aggressor; consider the former interpretation as the soundest; claim of the petitioner becomes equally negative; dissipate the invasion; wisest and cheapest policy; wars of the Indian nations; mediators or umpires between them; furnish the military adventurers; degree of respect proportionate to the share of influence he may possess in his nation; conjunction with the power of the nation to injure or serve; safe or expedient to reject their application which have a colour of right; establish an inconvenient or expensive precedent; rising character in his nation; commendable the motive; induced the party of frontier citizens to offer their services to an indian nation threatened with invasion; unauthorized by government; lead other citizens to like intermeddling; hostilities with the offended nation; prayer of the petition ought not to be granted; operate against aggressions; general protection having relation to whatever might endanger their existence as a nation or people; encroachments upon their land; find them most desirous to guard against by treaties; want of police or laws to compel their people to yield up what they had taken; inability to defend themselves from foreign intrusion; promise of protection is still obligatory; what nature then is the protection; laws of the United States; any indian or other person taking refuge among them who should commit a robbery, murder or other capital crime; person under their protection; conditions required to be observed by the Chickasaws to intitle them to the protection; found on examination that they have neither delivered all property taken from the citizens of the United States taken during the war nor yet conducted themselves in all other respects agreeably to the treaty; permitted Spain to erect a fort and garrison it within their limits under color of protecting them; failed in these points on their part; cannot claim as right a perfect compliance on ours; departures from the conditions of the treaty; absolved in any degree the United States from their engagements; peculiarity of the indian situation; chickasaws entitled to protection from the United States by any positive or express stipulation in their treaty; does the protection apply to the case in question; treaty with the Chickasaw nation; give peace to the nation and receive it into their favour and petition on certain enumerated conditions; all prisoners citizens of the United States and all negroes and property taken from citizens thereof during the war should be restored; chickasaws should be under protection of the United States and no other sovereign; hunt and live within certain defined boundaries; deliver up to be punished; case of Colbert who has petitioned Congress to be paid for provisions which he furnished to a party of inhabitants from Tennessee; Chickasaw nation to help them resist invasion by the Creeks; offer several matters for consideration;
Transcription

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Secretary of War [undecipherable]
Jam McHenry
War Office, January 16th 1797
Sir,
The case of Colbert who has petitioned Congress to be paid for provisions which he furnished to a party of Inhabitants from Tenessee, who went into the Chickasaw Nation to help then to resist an invasion by the Creeks, offer several matters for consideration.
Are the Chickasaws intitled to protection from the United States, by any positive or express stipulation in their treaty; and if intitled, does the protection apply to the case in question.
The United States entered into a treaty with the Chickasaw Nation, in the year 1706, in which the United States, stipulate; "to give peace to the Nation, and to receive it into their favour and protection on certain enumerated conditions. Among these are.
That all prisoners Citizens of the United States, and all negroes and property taken from the Citizens thereof during the war should be restored.
That the Chickasaws should be under the protection of the United States and no other Sovereign whosoever.
That they should hunt and live within certain defined boundaries.
That they should deliver up to be punished by the laws of the United States, and Indian or other person taking refuge among them ,who should commit a Robbery, murder or other capital crime on any Citizen of the United States or ' person under their protection &c.
Such are the conditions required to be observed by the Chickasaws, to intitle them to the protection of the United States. Have they fulfilled these conĀ : ditions? It would perhaps be found on examination, that, they have neither delivered all property taken from the Citizens of the United States during the war, not yet conducted themselves in all other respects agreeably to the Treaty. It is certain also, that the nation, or a part of it, have permitted Spain to erect a fort and garrison it, within their limits, under colour of protecting them. Having failed in these points on their part it might be said, that they cannot claim of right a perfect compliance on ours.
I would not mean to intimate however, that these departures from the conditions of the Treaty have absolved in any degree the United States from their engagements. They are such as might have been expected to have happened
from
from the peculiarity of the Indian situation; their want of police or laws to compel their people to yield up what they had taken, and their inability to defend themselves from foreign intrusion. Set it be presumed therefore that the promise or protection is still obligatory on the United States.
Of what nature then is this protection? Is it to operate against ag:gressions by Citizens of the United States only; or is it a general protection, - having relation to whatever might endanger their existence as a Nation or People?
When it is considered, that encroachments upon their land is the danger to which the Indians within the United States are most exposed, and that which we find them most desirous to guard against by treaties; it is fair to presume, that the protection meant in this Treaty has reference chiefly if not wholly to that object; and that the surrender made by then in the treaty of a part of their land on which they were accustomed to hunt, was to be the price of protection of the remainder.
This construction, as being the most natural one, because most conformable to Indian feelings and views, and comprehending what might be reasonably promised by the United States, may be received as the true one. Had military succours in cases of Indian invasions been contemplated by the parties there would have been words introduced into the treaty expressive of the intention.
Admitting however a different constriction, or that the protection here stipulated for, implies military succours whenever the Nation should find itself engaged in a war, still it would be a duty incumbent upon the United States to inquire, which Indian nation was the aggressor, before they could lawfully furnish it; and to judge, besides whether the nation demanding the succour was not competent to dissipate the Invasion without it.
I should therefore consider the former interpretation [caret insertion]without absolutely determining the point as the soundest; but which ever is adopted, the claim of the petition becomes equally negative, the succour being furnished without authority from the United States.
As a general rule perhaps it is the wisest and cheapest policy for the United States, to take no part in the wars of the Indian Nations with each other,
further
further than as mediators or umpires between them, where they can effectually interpose to adjust their differences.
Were the United States to pay for the provisions, it would be laying a foundation for the Nation to expect like assistance on future similar occasions, and would, besides, furnish the military adventurers with a claim against the United States for their Service.
It is however to be observed, that claims, which if brought forward by a Citizen, would be justly regarded as improper, acquire when urged by an Indian a degree of respect proportionate to the Share of Influence he may possess in his nation in conjunction with the power of the nation to injure or serve the United States. For this reason it is not always safe or expedient to reject their applications which have as colour of right; nor safe or expedient to yield to them formally when doing so would establish an inconvenient or expensive precedent. The Executive in such cases is obliged to choose a middle way where the request is not wholly inadmissible. As Colbert therefore was arising Character in his nation, and son of one of the prin:ipal Chiefs, whose influence is considerable and increasing, he has received in presents, what was calculated to have satisfied him
I am of opinion therefore that it would be proper to report in his case.
That however commendable the motive might be which induced the party of frontier Citizens to offer their services to an Indian Nation threatened with invasion, yet, inasmuch as the proceeding was unauthorized by Government, and if countenanced might lead other Citizens to a like intermeddling, and thereby involve the United States in hostilities with the offended Nation; and inasmuch as the United States are not expressly bound by the Treaty to afford succours to the Chickasaws in their wars, and as it would be inexpedient to establish a precedent which might countenance the principle, the Committee are of Opinion that the prayer of the petition might not to be granted.
With great respect.
I am Sir
Your most obedient Servant
James McHenry
Honble Dwight Foster Esq.
Chairman of the Committee of Claims