CHEROKEE PHOENIX, AND INDIANS' ADVOCATE
Saturday, July 31, 1930
Volume 3 No. 15
Page 4 Col. 1a-3a
From the Dutchess Intelligencer.
Whenever it happens, in a question of disputed right, that the pretensions of one of the parties violate the plainest principles of equity, honest men are seldom at a loss with which of the two to side. It is thus with the Indian nations. An ingenuous mind is fulled with wonder to learn that the question is, whether Georgia has the right to drive the Indians (for her laws are nothing less than force) from their lands. Not content with that domain which a century of conquest and purchase has added to her territory, she is uneasy, and feels herself "cribbed and cabined in" so long as one of the ancient possessors remains to be seen. There are those among us who yet indulge the hope, that the American people are not insensible to the united claims of justice and humanity, and will not yield up the national character a prey to the insatiable rapacity of the land jobbers of Georgia.
The primary source of title to land is occupation. Whenever that occupation has been long continued it becomes prescription: and where that acknowledged, there is not wanting any one of the evidences of the most complete and perfect title. The Cherokee Nation, with whom our business is, can produce all these evidences in favor of their humble and unpretending claim to live and die in the land of their fathers. But the Indian title as a thing distinct and peculiar; it differs very widely from the nature of that ownership, which nations completely independent, exercise over their national domain. For all their purposes, however, it is complete; it consists in right to perpetual occupation according to their own customs: these customs vest the whole land in the whole tribe, and except by special license, do not admit a several ownership, in any single individual.
At a very early period of the colonial governments, there arose a distraction, since well established, between the ultimate right to the fee of the land, and the immediate right of occupancy; to which was superadded another principle of great importance, naturally flowing from that distinction, that none but the owner of the ultimate right to the fee, could become the possessor by purchase or conquest of the intermediate occupation. This power was accordingly vested in the crown of Great Britain. This state of Indian relations was familiar to every well informed man in our country, when the colonial tie severed, and the United States concluded the peace of 1783.
The parties of that treaty were George III, on the one part, and on the other, not the individual states in a several capacity, but the "United States of America," that new sovereignty which was alone known to foreign nations. Hence the state of Georgia did not succeed to the prerogatives of the crown in relation to the Indian nations, adjoining or within the limits of that state, but the same became vested in the United States, and ever since have, in point of fact been exercised by them, to the express exclusion of the states. Now we are well aware that it is the rash and presumptuous disposition of some, to disregard the authority of old examples and the practical expositions of former times, yet we suppose that even by the most fastidious, we will be deemed to have proved enough, if we can shew (sic) that the United States claimed this power, and that Georgia admitted the claim.
In the interval which clasped between 1785 and 1802, the United States concluded four treaties with the Cherokee Indians by all of which very large cessions of land were made to the former. These treaties were negotiated in South Carolina, at Philadelphia, and in the Indian country, as the treaty has it, "near Tellico on Cherokee ground." They were public and notorious acts of State, ratified by the Presidents and Senate, and their provisions were all known to the senators of Georgia, and to the government of that state. It is material to remember this, because the last of the four treaties was concluded in 1798, and the compact with Georgia was made in 1802, in which the government agreed to buy for her the Indian lands as soon as it "could be done peaceable & upon reasonable terms." Hence in Georgia, all the preceding acts were known when the contract was made, and of course the powers exercised for thirteen years by the general government, were known; to this may be added the whole scope and tenor of the compact itself- for why should Georgia have solemnly stipulated for the extinguishment of the Indian title by the United States, if she had been competent to extinguish it herself?
The following articles of the treaties concluded previous to 1802, are those which apply directly to the argument.
"The said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever." (1785, Article 3.)
"If any citizen of the United States, or other person not being an Indian, shall attempt to settle on any of the lands which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same &c. such person shall forfeit the protection of the United States and the Indians may punish him or not as they please.
(1785 Art. 5. 1791 art. 8)
"For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such a manner as they shall think proper."
(1785 Art. 9)
The right of Congress to manage the affairs of the Indians, contained in the last article, is not conferred by the Indians in any subsequent treaty.
Treaty of 1792, Art. 2. "The undersigned Chiefs and warriors, for themselves and all parts of the Cherokee Nation will not hold any treaty with any foreign power, individual state, or with individuals of any state."
Art. 7, of the same treaty. "The United States SOLEMNLY GUARANTY to the Cherokee Nation all their lands not hereby ceded."
Art. 9 of the same. "No citizen or inhabitant of the United States shall attempt to hunt or destroy the game of the land of the Cherokees; nor shall any citizen or inhabitant go into the Cherokee country, without a passport." &c. &c.
Art. 2, of the treaty of 1794- "The treaties subsisting between the present contracting parties, are acknowledged to be of full and operative force, together with the construction and usage under their respective articles and so to continue."
One of the negotiators of this last mentioned treaty, on the part of the United States, was George Walton, and eminent citizen of Georgia. If George Clinton, John Jay, Daniel D. Tompkins, DeWitt Clinton, or Thomas J. Oakley, had transacted an affair of this kind is it reasonable to suppose that the people of this state or their representatives could be ignorant of the whole matter?
Such are the terms used by a civilized and powerful protector, to those who repose under the shadow of her wings. It is plain that the force and perspicuity of language can do no more than is here done, to recognize and secure the rights and possessions of the Cherokees from the aggressions of the whites. The state of Georgia was as much a party to all these treaties, as any other state in the Union. Her Executive, her Legislature, and her Judiciary, were all bound by their force and legal effect. They preceded the compact between her and the United States in 1802, so that when that compact was made, there could be not pretence of ignorance or surprize (sic). After the compact the tenor of the treaties was not altered; the very first article of the treaty of 1805 is as follows:
"All former treaties which provide for the maintenance of peace, and preventing of crimes are on this occasion to be recognised (sic) and continued in force."
The conclusions to be drawn from all these facts and treaties are,
1. That the Indians being the original owners of the land, have a natural and legal right to retain their possession.
2. That the United States have alone authority to transact affairs of any kind with the Indians-and in the exercise of that authority have prohibited individuals and states from purchasing Indian lands or entering their territory.
3. That four treaties had been made with the Cherokee Indians anterior to the compact between the United States and Georgia, and that by these treaties the United States guaranty the Indian lands to the possessors.
4. That these treaties were will known to the Government of Georgia when the compact was made.
5. That by the compact, the government "of Georgia plainly acknowledged the rights of the Indians, and the exclusive authority of the General Government to negotiate with the Indians, and regulate all intercourse with them.
6. That the law of Georgia for extending her jurisdiction over the Indians is a direct violation of the provisions of all these treaties.
Page 4 Col. 3a
"Let us count the cost" - It has been stated in the public papers, on the authority of Mr. EVERETT, a member of Congress from Massachusetts, that the expenses attending the contemplated removal of the Indians from their present peaceful habitations within the borders of Georgia, Alabama and Mississippi, to the wilderness assigned them by Congress west of the Mississippi River, would cost the national government the enormous sum of TWENTY-FOUR MILLIONS OF DOLLARS!- When this statement first appeared, we considered it incredible that so large a waste of public money could be contemplated for an object which if it cost nothing should never compel the Indians to emigrate. The declaration we considered extravagant, and if made by a member so intelligent, and candid as Mr. Everett, must have been the accidental expression of a man in earnest debate, warmed with a glowing sense of accumulated wrongs about to fall upon the unhappy aborigines of the west. But the fact is otherwise. This honorable and eloquent member of Congress had looked coolly into the subject. He has not hastily given an opinion; but made it a matter of research, & minutely investigated item by item, before he ventured on the national floor of Congress, in the face of friends and foes, to proclaim to the people that they were to be taxed twenty four millions of dollars to gratify the inhumanity of two or three States that covet the Indian inheritance. Within a few days past, Mr. Everett's speech, in which he adverts to the overwhelming expense to be incurred by the removal of the Indians, has appeared in print. We have read it; and are surprised to find that his argument is sustained by facts so many & plausible. His estimates are minute and particular--every man, the least acquainted with arithmetic, has facts presented from which he can calculate and draw his own conclusions. These calculations and inferences must make an impression on the dispassionate reader, and clearly show that Mr. Everett's estimate is not so wild and visionary as might at first have been imagined- twenty four millions of the national treasure thrown to the winds to aid Georgia, &c. in oppressing their Indian neighbors-and the President of the United States giving his cordial sanction thereto. Had Congress appropriated this sum to aid the Colonization Society to emancipate and send to the soil of their fathers the enslaved Africa-had they vested it in stock of useful canals or public turnpikes, to strengthen the bonds of the Union and facilitate commerce and internal communication, the amount of good resulting therefrom would have been incalculable. But to devote such an enormous sum to an object which, in its effect, is to further the oppression of a race of men who are emphatically the "lords of the soil" is what justice and humanity cannot but loudly and imperiously condemn. With great propriety therefore was Congress invited to "count the cost" before it passed the bill; and the same appeal is applicable to the people before they sanction what a majority of their representatives have done.
Sen. of Freedom