CHEROKEE PHOENIX, AND INDIANS' ADVOCATE
Saturday, July 31, 1830
Volume 3 No. 15
Page 2 Col. 3b
New Echota: July 31, 1830
We have always been sensible that among the people of Georgia there are many who feel for the condition of the Cherokees and condemn the authorities of the state in their arbitrary course towards them.- This we know from personal acquaintance with many of the worthy citizens and the reader will be satisfied that it is at least the case with one when he peruses the communication of A GEORGIAN. For these men we entertain the highest respect.- They are indeed true to their principles as republicans and friends of equal rights-they are worthy of the American name, and are an honor to the state and the nation. Happy would it be for the Unites States and the poor Indians if the leading men of Georgia partook largely of their feelings.
We have struck off additional copies of the address of the Committee and Council to the people of the United States, for general distribution. We again request those, to whom the sheet containing the address has been sent, to have it as extensively read as possible.
The following letter was unavoidably deferred last week. We now lay it before our readers.
HEAD OF COOSA, CHER. NA.
July 20th 1830.
To H. MONTGOMERY, U.S. Agent.
Sir,- In pursuance of the accompanying Resolution of the General Council of this Nation-I avail myself of the earliest opportunity to submit through you to the President of the United States, the sentiments of the Cherokee people as expressed by their immediate Representatives; and in compliance with the aforesaid Resolution I would beg leave further to add in reply to your communications of the 26th ult. and of the 10th inst. that it is pleasing to be informed that "the President seeks not to oppress or drive us, and that he feels for us as a Father feels for his children, and is deeply solicitous for our welfare"- but on the other hand we are grieved to hear him say that he has no power to interfere and oppose the exercise of the sovereignty of any State, over, and upon all who may be within the limits of any state, and that we will prepare ourselves to abide the issue of such new relations without any hope that he will interfere, because it is by this understood, that he considers our territory to be within the ordinary jurisdiction of individual States, and that the Cherokees must consequently submit to the State laws; -whereas by the treaty of peace between the United States and the Cherokee Nation, the latter is acknowledged to be under the protection of the United States and of no other sovereign whosoever, and it is stipulated that the Cherokee Nation will not hold treaty with any foreign Power, individual State or with individuals of any State; and in the preamble of the same Treaty (of Holston) the inhabitants of this nation are called citizens of the Cherokee Nation, and in the 11th article thereof it is irresistibly implied that the Cherokee country is not "within the jurisdiction of any state" nor "within the jurisdiction of any of the Territorial Districts of the United States." And by the 7th article "the United States solemnly Guarantee to the Cherokee Nation all their lands not ceded." And by the 6th article of the Treaty of Tellico, 1798, this Guarantee is pledged by the United States to be continued "forever." The Cherokee Nation have no desire to change the relations established between them and the United States by the subsisting treaties, and as it is believed that they are perfectly consistent with the principles of the constitution and laws of the United States. We cannot believe that the General Government will withdraw their protection and abandon us to the power of an individual State, when at the same time the faith of the Cherokee Nation is pledged to the United States by treaty that they will acknowledge the protection of the United States exclusively, and that they will not hold any treaty with any other sovereign whosever. It is the received opinion of some among the ablest Jurists, that the Cherokees are a sovereign nation; and their having placed themselves under the protection of the United States, does not at all impair their sovereignty and independence as a nation. "One community may be bound to another by a very unequal alliance, and still be a sovereign State. Though a weak State, in order to provide for its safety, should place itself under the protection of a more powerful one, yet according to Vatell (B 1 ch. 1 paragraph 5 & 6) "if it reserves to itself, the right of governing its own body it ought to be considered an Independent State." 20 Johnson's Report 711, 712 Goodell vs. Jackson.
That the territory of the Cherokees is not within the jurisdiction of Georgia, but within the sole and exclusive jurisdiction of the Cherokee nation.
"That consequently the State of Georgia has no right to extend her laws over this territory - that the law of Georgia extending jurisdiction is unconstitutional and void.
1st. Because it is repugnant to the Treaties between the United States and the Cherokee Nation.
2d. Because it is repugnant to a law of the United States passed in 1802, entitled "an act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers."
3rd. Because it is repugnant to the Constitution, in as much as it impairs the obligation of all the contracts arising under the treaties with the Cherokees; and effects moreover to regulate intercourse with an Indian tribe power which belongs, exclusively, to Congress."
The unhappy difference of opinion which seems now to exist under the claim set forth by the State of Georgia to exercise the power of sovereign jurisdiction over the Cherokee Territory, involves a delicate question touching the powers of the General Government, which for the sake of good neighborhood the constituted authorities of this action have determined to refer to the Supreme Court of the United States for a Judicial decision- and it is to be hoped that this appeal will meet the approbation of the President, as it evinces a pacific disposition on the part of the Cherokees, and shows that they do not desire to grasp at any extravagant pretensions of power, more than can be awarded to them by the laws of the land.-I would therefore humbly beg that the Executive authority of the United States will be extended to protect the Cherokee Nation against the oppression and violence of Georgia, as far as the Constitution, treaties and laws of the United States will authorize him to go, until a final decision upon this important controversy is had from the Judicial Tribunal of the Union-the Supreme Court of the United States.
In reply to the other points embraced in your communications. I refer you to the accompanying Resolution of the General Council. And in conclusion permit me to say that I can see no just cause for any difficulties to take place between the United States Troops and the Cherokees; and that no provocation will be given or sanctioned on the part of the constituted authorities of the Nation. Understanding that the United States Troops were ordered into the nation for the purpose of removing intruders from the Cherokee lands, which has not as yet been effectually done-it is with feelings of deep regret we have heard it announced that an arrangement has been made between the United States troops and the civil authority of Georgia for executing all civil processes in the Cherokee Nation under the laws of Georgia-and also that the Cherokees are ordered to desist from digging gold in their own country, and consequently are viewed as intruders upon the own soil no reason being assigned nor explanation given why it became necessary in the present unhappy state of our affairs, that such measures should be taken- we cannot but view such orders with astonishment and feel them grievously oppressive, and hope that they will be reconsidered and countermanded by the President together with that directing the distribution of annuities.
The people of this nation having established a constitutional form of Government and the annuities due the nation by the United States having been applied for the support of this Government, it cannot be expected that the constituted authorities will, by their act, and with their own hands, demolish the fabric reared by the voice of the people for the Government of the Cherokee Nation.- You will please to lose no time in laying this communication and the accompanying document before the President of the United States at Nashville.
I am, Sir, Respectfully
Your ob't Serv't
Page 2 Col 5b.
The editor Cherokee Phoenix
It must, at all times, be extremely painful to a patriotic citizen to feel himself constrained to disapprove or censure any of the public measures of his native state. But whenever the leading men of the Government pursue an oppressive and cruel policy towards individuals or communities, silence on his part would justly subject him to the charge of "particips criminis." He should then fearlessly and loudly raise his voice against the oppression though the power he may attempt to oppose threatens to crush him with its thousands of victims. It is under such a sense of duty that I now throw myself before that torrent of prejudice and persecution which is every day beating stronger and stronger and roaring louder and louder against the rights of the Cherokees. It would be unnecessary in me to go into a detail of all the numerous treaties and compacts guaranteeing unto our red brethren and possession of their soil and various immunities. They are familiar to everyone. I shall only give a rapid recital of those stipulations, long admitted and acquiesced in by the State of Georgia, and then notice in what manner they have been respected by that state.
The first stand taken by Georgia, was, that the Cherokees were entitled to the permanent occupancy of the land, being privileged to alienate alone to the United States for her use. Thus the controversy rested for many years, the state in the meantime acquiring several valuable cessions of land; at each of which cessions, the General Government guaranteeing, and the state by her reception of the land on those terms, ratifying the stipulation, that the Indians were to be protected, as heretofore, in their remaining territory. But another acquisition of land is desired, which would entirely remove the Indians beyond the chartered limits of the State, and by what step is this essayed? An effort to purchase was attempted by commissioners. The Indians feeling an increased attachment to their hereditary homes, from their progress in civilization, refused to sell and move to a new and distant country. But the Indians must be ejected in some way-their fruitful land must be possessed-& for the first time that strange and monstrous doctrine is advanced, that all the ancient rights and usages, customs, laws and tribunal of these primitive settlers of the soil must be abolished-swept away at one fell swoop-and they brought under a totally different, and to them entirely strange jurisdiction. And for this sore bereavement, have the Indians the consolation of knowing that they are to participate in all the blessing of that jurisdiction? Not so-such an arrangement would not perfect the great scheme of oppression; this turn of the screw would only give them the rheumatism; one turn more and they will receive such a severe gout as to be compelled to seek another clime. The same statute extending the civil authority of the State, declares "that no Indian or descendant of any Indian residing within the Creek or Cherokee Nation of Indians shall be deemed a competent witness in any court of this state to which white person resides within the said nation." Is not this like burying a man to his neck in the ground, with the means of subsistence placed before him, but beyond his reach? The Indians have consequence enough to be subjected to all the penalties of our civil and criminal code, but are too worthless and insignificant to participate in its advantages. What a mournful presage of the downfall of a nation bloating with corruption and from an overgrown pride and prosperity. By this statue a wide door is thrown open for dishonesty to practice every species of fraud upon the Indians-by it all the bulwarks of their lives, liberties, and prosperity are torn away, exposing them naked and defenceless (sic) to the mercenary whites, who are rushing over treaties, justice, and humanity to get possession of the coveted land. And by whom, and for what purpose has this unholy deed been committed? by an enlightened and civilized legislature, hoping thereby so to fetter and embarrass the Indians that, rather than continue under such a state of things they will consent to sell their birthright. Yet even this merciless law does not drive the men of the forest from the graves of their fathers. They still cling to the land they have so often "seen from their mountains, and passed over in the chase." Something else must be done to increase the difficulties of the Indians, and detach these tenacious affections of theirs. Accordingly we hear another paradox proclaimed at Washington City, that the claim of the Indians to the land not yet ceded by them is confined to that portion they actually occupy, or have enclosed. A doctrine so glaringly absurd and despotic, that even some of the most strenuous advocates of the Georgia policy are ashamed of it. But it may perhaps accomplish the favorite object in view. The Cherokees are a bold and haughty people-extremely impatient of confinement. Coop them up then-restrict them within narrow bounds, and they will become so tame and tractable as to be easily led or coaxed off to Arkansaw (sic). Pursuant to this new fangled doctrine, a blazing proclamation is issued by the Governor of Georgia forbidding the Indians to dig any gold within the Cherokee boundaries. Where is the authority for this prohibition? Shew (sic) the bond, and you shall have not only the pound of flesh, but all the blood that streams from the incision. From what source is this restraining power derived? Is it from the expulsion of the British dominion over this country, and a consequent assumption by us of all the control which government claimed over the Indians? Now, granting, and for argument sake alone, that the English King received the allegiance of the Indians to the extent contended for by some-to which of the two sovereignties did that allegiance rightly attach by the issue of the Revolution- the State or Federal government? Certainly to the latter as the paramount and most appropriate power. Should, however, there be any one so hardy as to withhold this rational admission, let him refer to the constitution of the United States, and he will there find that in the right to regulate commerce with the Indians, Congress has, with the sanction of Georgia, the superintending care of the Cherokees, and from them entitled to whatever obedience is due from a dependent to the protecting power. If the stickler for state rights still disputes my position, I would cite him to the compact of eighteen hundred and two between the State of Georgia, and the United States. In that agreement the right to treat with and extinguish the Indian title to lands is conceded by the State to the United States. And here let me ask, if the State of Georgia believed she possessed the exclusive right to treat with the Cherokees for their lands, would she have given an immense territory to the general government to do that, which she herself could have done?
Having clearly established, as I conceived that the jurisdiction of the Cherokee Nation is vested, if vested any where, in the General Government-let us next enquire whether the whole or any part of that jurisdiction has been transferred to the state of Georgia. In an act of Congress, passed in eighteen hundred and two, and never repealed, regulating trade and intercourse with the Indian tribes, and which act was approved by the vote of the Georgia delegation, after defining the boundary line, established by treaty between the United States and various Indian tribes, including the Cherokees, it is declared, "If any citizen or other person shall go into any town, settlement, or territory belonging, or secured by treaty with the United States, to any nation or tribe of Indians, and shall there commit &c. such offender shall forfeit a sum not exceeding one hundred dollars, and be imprisoned not exceeding twelve months. And it shall moreover be lawful for the President of the United States to take such measures and to employ such military force, as he may judge necessary, to remove from lands, belonging, or secured by treaty as aforesaid, to any Indian tribe, any such citizen, or other person, who has made, or shall hereafter make, or attempt to make a settlement thereon." Here we perceive not only a retention of the jurisdiction by the General Government, but a rebuttal of the novel doctrine, that the claim of the Indians is confined to the land they actually occupy: for if I understand the word "territory" it means as well that part of the land, forest or wilderness, not ceded, as that which may be enclosed or under cultivation. It is further asserted in the same act that "No purchase, grant, lease or other conveyance of land or of any title or claim thereto from any Indian, or nation, or tribe of Indians, within the United States shall be of any validity in law or equity unless the same be made by treaty or convention, entered into pursuant to the constitution." "No State shall enter into any treaty, alliance, or confederation &c." "The President shall have power, by and with the advice and consent of the Senate to make treaties" &c. and in the memorial of the Senate and House of Representatives of the State of Georgia, addressed to the President as late as the year 1819, it is declared, "The State of Georgia claims a right to the jurisdiction and soil of the territory within her limits. She admits however, that the right is inchoate, remaining to be perfected by the United States in the extinction of the Indian title: the United States, pro hac vice, acting as our agent." It is sufficient here to ask, has the Cherokee title been extinguished? If not, then the State of Georgia has no jurisdiction-for agreeably to her own admission, her jurisdiction cannot commence until after the extinction. Thus it is evident from the Constitution- the compact of 1802-the act of Congress-the memorial of Georgia-and a long acquiescence by Georgia, that she cannot properly exercise any kind of jurisdiction, over the Cherokee Nation, until its territory is acquired by the treaty making power- and in extending her laws and restraining the Indians from digging gold, she undertakes to nullify the provisions of the constitution, and to set up her own provisions as substitute therefor. I am aware that I have omitted various important views of which the question is susceptible; but it appears to me that they would all have led to the same conclusion.
Page 2 Col. 2b.
The following extract of a communication written from the neighborhood where the transaction took place, will give our readers further light on the justice and humanity of some civilized and republican people.
A company of whites was in this neighbourhood (sic) with forged notes and false accounts to a very considerable amount upon the Indians, and forcibly drove off the property of several families. This, sir, is the cause of our misery, poverty, and degradation, for which we have been so much reproached. This is what makes us poor devils; if we fail to make good crops some of the white neighbors must starve, for many of them are dependant upon us for a support, either by fair or foul means. Some of the poor creatures are now travelling among us almost starved, begging for something to eat--they are actually worse than Indians. If they cant (sic) get by begging, they steal. To make us clear of these evils, and make us happy forever, the unabating avarice of some of the Georgians, by their repeated acts of cruelty, point us to homes in the west--but as long as we have a poney (sic) or a hog to spare them we will never go, and not then. This land is heaven's gift to us, it is the birth right of our Fathers; and as long as these mountains lift their lofty summits to heaven, and these beautiful rivers roll their tides to the mighty Ocean, so long we will remain. May heaven pity and save our distressed country.
Page 3 Col. 3b
PUBLIC MEETING AT LEXINGTON, KY.
A meeting said, in the Kentucky Reporter, to have been a very large one, was held in Lexington on the 21st of June at which, after a discussion that lasted six hours, a series of resolutions were passed, strongly disapproving of the President's rejection of the bills passed at the close of the session for certain internal improvements, and of the bill for removing the Indians in the State of Georgia, which, the resolution says, if carried into execution "will involve a wasteful and extravagant expenditure of public treasure-a gross violation of the faith of the nation"-and expressing, their disapprobation of the conduct of their senators, Messrs. Rowan and Bibb. N. Y. D. Adv.