grants may have been given by the Mexican authorities, yet they were treated as colonists with rights to lands in joint tenancy. They were put into possession by the same, and their rights were never afterwards disputed by said Mexican Govern

ment.

2d. As far as the Republic or State of Texas is concerned, the Cherokees were the original proprietors of the said lands, and are entitled to hold them in the same manner, and to the same extent as any of the aboriginal tribes in America hold their possessions. The rights of the aborigines to the lands in which they are found in possession have been sacredly upheld by the United States Government; and indeed by all European powers who have established colonies in North America.

The lands of the Indians have never been taken, except by purchase or treaty. The Republic and State of Texas were bound by every principle of International law to carry out, with respect to the Cherokees, all the obligations, which the Mexican Government had assumed in relation to them. Texas succeeded to the Mexican Government as a nation and as a governing power, and, although it did so by force and revolution, yet it must assume all the obligations, which rested upon the Government which was overthrown. It assumed the place of the superseded Government, charged with all its burdens, debts and obligations of every kind to all other people and nations.

This doctrine is sustained by all writers on international law. This principle, and the rights of the Indians under it was fully acknowledged by the Consultation of all Texas in general convention assembled in the following language:

"Be it solemnly declared, that we, the chosen delegates of "the Consultation of all Texas in general convention assembled "solemnly declare, that the Cherokee Indians and their associ"ate bands, twelve tribes in number, have derived their just "claims to lands included within the bounds hereinafter described, from the Government of Texas, from whom we have "also derived our rights to the soil by grant and occupancy."

4th. The Republic of Texas have acknowledged in the most solemn manner, and the formality of a treaty, the rights of these Cherokees to their lands.

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The "Consultation" last named was a representative body chosen by all the people. They declared the prior right of the Indians to the lands over all other persons; defined the boundaries of the same; guaranteed them in the peaceable enjoyment of the lands and they solemnly pledged the public faith to the observance of the foregoing declarations.

This Consultation was then the only Government, and was a de facto Government with full power to make these treaty stipulations.

It cannot be said they had no authority to make these stipulations, for they were the only Government then existing in Texas, and were the immediate representatives of the people.

These declarations of the Consultation were followed by a mere formal treaty made between the Provisional Government of Texas and the Cherokee Indians.-By ordinances, passed Dec. 22d and Dec. 28th 1835, the said Provisional Government appointed Sam. Houston, John Forbes and John Cameron, Commissioners to treat with the aforesaid Indians, with power to any two of them to conclude a treaty and to provide in the same, that the Government would at any future time thereafter, purchase their claims at a fair price, and were also empowered to exchange other lands for the lands claimed by the Indians, and also to engage their co-operation in case of war.

Here the full rights of the Indians to the lands is acknowledged and the obligations of the Government to protect them. In pursuance of the above instructions, Sam Houston and John Forbes negotiated a treaty with the said Indians and executed the same, the 23d of Feb. 1836, by Houston, Forbes and the Chiefs of the Indians.

They provided for lasting peace between the Government and the Indians, and provides that the treaty is made conformably to the declarations of the General Consultation alluded to; provides that the Indians shall have and possess the lands within limits therein described, same as mentioned in the declaration of the Consultation.

It would seem, that the Republic of Texas was bound by every principal of law, equity and justice to sustain the rights of the

Indians to these lands. She could not repudiate all her most solemn acts and treaties with these people and still claim to have a place among the enlightened nations of the earth.

All Indian tribes have heretofore been held to be wards of the Nation, and their rights have theoretically been strictly regarded. Cherokee Nation vs Georgia, 6 Peters, 515.

It does not seem possible that any Republic or State can now ignore all such obligations, as have been above mentioned, and by force of arms drive out these people, and deprive them of their possessions; or, that a powerful Sovereign State should plead technicalities against a weak tribe of Indians, and against their own plain treaties and pledges.

5th. The State of Texas is the lawful successor of the Republic of Texas, and as I before said, it assumes all its authority and all its obligations; and among them, the pledges and treaty stipulations above set forth made with the Cherokee Indians.

It seems to me impossible that any State governed by high principles of honor and equity can resist this claim and these pledges made when they were in need, and when they desired and received the friendly co-operation of these very Cherokee Indians.

No Ex post facto laws passed by the State will now deprive the Indians of these rights; and, indeed they are not subject in regard to rights of property to State laws.-Kansas Indians, 5 Wall, 737.

II. What is the proper method of prosecuting the claim for the said lands?

I will not here discuss the question as to whether this claim can be prosecuted before the United States Courts as against the State of Texas, or as against the actual settlers on the lands, for I should not consider such a remedy, if it exists, as expedient, until all others had been tried.

I consider it more honorable, that the State of Texas should, voluntarily, through her own Legislature, make provision for the settlement of claims of the said Cherokees.

The manner in which it can and should be done is fore-shadow

ed in the ordinance of the Provisional Government, dated Dec. 28th 1835, which appoints Commissioners to negotiate with the Indians, as follows:

"SECTION 2d. That said Commissioners are required in all "things, to pursue a course of justice and equity towards the “Indians, and protect all honest claims of the Whites agreeably "to such laws, compacts or treaties, as the said Indians may "have heretofore made with the Republic of Mexico; and that "the said Commissioners be instructed to provide in said treaty "with the Indians, that they shall never alienate their lands, seperately or collectively, except to the Government of Texas. "and to agree that said Government will at any time hereafter "purchase all their claims at a fair and reasonable valuation."

The plan indicated in this pledge of the Republic of Texas is the most honorable and proper method of compromising and settling this claim. It is the plan, which the founders of the State themselves have suggested and offered.

The State now should, through its Legislature be asked to fulfill their own pledges and purchase at a fair valuation these lands.

The United States will not allow Indians to alienate their lands to private citizens not of their tribes. [Statutes of U. S. 1834, June 30th, Sec. 12]; neither will it be the policy for the State of Texas to allow it; but the State is, for that reason, the more bound to purchase the said lands, and thus become owner for the same, and bring them into her public domain, and sell the same herself to white settlers.

The question may be asked, has the State of Texas authority to negotiate with these Indians?

The Republic of Texas had the undoubted authority to deal and negotiate with the Indians in her own territory. They did, as before quoted, pledge their faith to give the Indians a fair equivalent for their lands at any time when they should wish to sell.

These rights of the Republic and its obligations are represented by the State of Texas, who have lawfully succeeded.

In the act of admission of Texas to the Union.

Laws of the U. S. March, 1 1845, Sec. 2d, it is provided, that when said State of Texas is admitted to the Union, she "shall "retain all the public funds, debts, taxes and dues of every kind, "which may belong to or be due and owing said republic; and "shall also retain all the vacant and unappropriated lands lying "within its limits to be applied to the payment of the debts and "liabilities of said Republic of Texas, and the residue of said "lands, after discharging said debts and liabilities, to be dis"posed of as said State may direct; but in no event are said “debts and liabilities to become a charge upon the Government "of the United States."

It is thus clear, that the State of Texas also retain all rights pertaining to a Sovereign State, to deal with the Indian lands, and the same rights as the United States have ever exercised, which has been the right to negotiate and purchase of them. NEW YORK Oct. 30th 1871. ·