Cherokee Phoenix

Note: This edition of the Phoenix is printed in four columns only

Published December, 5, 1830

Page 1 Column 1a--3b-Page 2 Column 1b

Note: This edition of the Phoenix is printed in four columns only.


From the New York Advertiser.

A large portion of the Message of the Governor of Georgia to the legislature of that state, delivered on the 19th of October, is devoted to the affairs of the Cherokees. He begins with complaining of the cupidity of the Georgians, and people from other states, in searching for gold among the Cherokees. The evil arose to such a pitch that it became a matter of consideration whether the legislature should not be called together to provide a remedy. The Cherokee government, he says, of the importance of which so much has been said, proved utterly powerless to protect rights or to punish wrongs. This must have appeared very extraordinary to His Excellency, especially since the first of June last, when the act of Georgia, declaring a total repeal and abrogation of all the laws, usages, and customs of the Cherokees was proclaimed, by this same Governor to be in force, and in no case, civil or criminal, could the same be given in evidence in any suit whatever. It seems that neither the Governor's proclamation, nor the United States troops, were sufficient to keep the gold-diggers away; and his Excellency says he should have employed the militia of the state for that purpose, but there was no provision in the laws or constitution authorising him to do so, nor was there any appropriation of money to pay them if called out. One advantage, however, he thinks will be derived from the not calling the legislature together. It must have convinced all persons, every where, of 'the necessity which impels the state to exercise jurisdiction over its Indian territory, not only for the protection of the property of the state, but the rights of the Indians; and that the Cherokee government, had it been permitted to exist, would have been wholly incompetent, under present circumstances, to discharge any of the duties for which governments are organized.' The process of reasoning by which Governor Gilmer comes to this conclusion, will probably be questioned by those persons who recollect, that at the very moment when the experiment might have been made, the Cherokee government had been annihilated, so far as it was in the power of the state of Georgia to destroy it. What it would have accomplished, 'had it been permitted to exist,' cannot be known to His Excellency, or any other man, because the experiment has not been made; and it is not with a very good grace that he should, under the circumstances, undertake to declare the question.

'The principal objection,' says His Excellency, 'which has been made to the exercise of the right of soil and jurisdiction by the State over the Cherokees has been drawn from the phraseology of the treaties between the tribe and the United States. If such treaties were to be considered as compacts between the independent nations, as has been asserted, they would be void so far as they pretended to limit the sovereign rights of the state. But treaties have been made with the Indian tribes, at all times, since the first settlement of this country, without having been considered such instruments as conveying political power or rights of territory. They have been the expedients by which ignorant intractable and savage people, have been induced, without bloodshed, to yield up what civilized governments had the right to possess by virtue of that command of the Creator, delivered to man upon his formation -- 'be fruitful, multiply, and replenish the earth, and subdue it.'

This passage contains some very important doctrines, particularly as coming from the chief magistrate of a state, when in his official character addressing the legislature of that state. Is it then so, that all the innumerable treaties which we have negotiated with the Indian tribes have been mere gull traps to delude those unwary confiding nations into the forms of treaties; with all the parade of considerations, stipulations, and agreements, for the mere purpose of defrauding them, in a peaceable way, our of their property and territories? If our government has from the beginning resorted to such mean, base, and dishonest 'expedients,' to cheat the Indians out of their possessions for such we understand to be the true meaning of Gov. Gilmer's language, merely because they were 'an ignorant, intractable, and savage people,' words cannot be found strong enough to express the vileness and wickedness of the conduct referred to. As the Indians are unmanageable, and at the same time a fighting race, it has been found easier, cheaper, and less hazardous, to defraud them of their property and their rights, in the form of bargains, than to rob them in manly warfare. Such we understand to be the true translation of Governor Gilmer's language on this subject. This is a reproach of too deep a hue to be submitted to, especially if we ever mean to lay claim to the character of a just and equitable nation.

Governor Gilmer remarks that 'It is also due to our Indian people that that provision of the law of 1829 should be repealed, which prevents Indians and the descendants of Indians from being competent witnesses in the courts of the state, in cases where a white man is a party. 'The present law' says he 'expose them to great oppression, whilst its repeal would most probably injure no one. Attempts have been made to strip them of their property by forged contracts, because of the impossibility of defending their rights by the testimony of those who alone can know them.' It may be considered fortunate for the Indians, that the chief magistrate of Georgia has discovered, in the course of nearly a twelve month, that a provision of the act of that state, which would probably have found few advocated in Turkey, on in Algiers, was upon the whole oppressive, and had better be altered. And we cannot but greatly admire the acute sense of justice, as well as the high tone of moral rectitude in an evening paper of this city, the editor of which, after having slept cooly for so long a time over this iniquitous measure, without venturing to utter the slightest sentiment of disapprobation, but emboldened by the example of Governor Gilmer, now boldly and magnanimously says, 'this was the only feature in the law of Georgia of which the Indians themselves could reasonably complain, and the terms in which Governor Gilmer speaks on the subject, evinces that there is not the slightest disposition in Georgia to oppress the men within the limits of that state.' According to the sentiments of this editor, then, the Indians have no cause of complaint at the order of the state of Georgia to abrogate all the laws, usages and customs of their nation, of the extension of the laws of Georgia over them, of the claim of that state to the absolute property in the Cherokee lands, of the prohibition of giving counsel or advice to each other against parting with their lands, and removing beyond the Mississippi, under the severe and unexampled penalty of confinement in the state prison at hard labor. Perhaps, however, when the feelings of the Governor of that state, shall relax a little more, and he shall discover some further iniquity in this Algerine(sic) statute, the editor of the same paper may follow suit, and fall in with His Excellency, keeping pace with him, as far as he may go.

We believe Governor Gilmer is the first commentator upon the scriptures who ever discovered in the general direction to Adam and Eve to be fruitful, and multiply, and replenish the earth, and subdue it, a latent authority, at the end of six thousand years to oppress, plunder and destroy the North American Indians. We have no idea that our first parents so understood it, and we much doubt whether Cain himself, even when bound to the land of Nod ever adopted so unjust and licentious a sentiment. It certainly cannot be contained in the general order to 'be fruitful and multiply, and replenish the earth,' for the Georgia policy has directly contrary tendency. And the expression 'subdue it' probably referred to its cultivation, rather than to the conquering of Indians at so remote a period of time, as there were then no Indians to subdue. Surely it would be a loose construction of the text to suppose that the authority for passing the legislative act of Georgia of 1829 is fairly derived from it.


From the National Intelligencer.

First impressions on reading the Message of the Governor of Georgia-and the Indians.

The Indians have occupied the lands from time immemorial; yet the Governor of Georgia claims these lands by right of discovery!

The Government of the United States has guarantied the lands to the Indians by numerous treaties. Yet, says the Governor, it is a mere right of occupation!

But the right of occupation is a perfect right, and exclusive, and is incompatible with any other possession or occupation. Yet, says the Governor, 'no doubt is entertained of the right to survey the Indian territory.' 'The rights of jurisdiction and soil are the essential attributes of government.' Therefore, Georgia, being a Government, has a right to the jurisdiction and soil of the Indian territory, and, as the sovereignty, independence, and limits of Georgia were acknowledged by Great Britain; therefore the pre-existing rights of the Indians, also recognized by Great Britain, by treaty, are abrogated!

The Governor of Georgia issued, upon his own authority, a proclamation declaring 'the right of the State to all the gold ' other valuable minerals in the ungranted lands occupied by the Indians.' Thus the Indians, having the right of occupation, shall have no right to the gold found in the soil they

occupy. The right thus asserted was supposed to be established, says the Governor 'by the allodial title which belongs to the State to all lands within its limits, not granted away, and the absence of all right in the Indians they never having appropriated the mineral riches of the earth to their own use.'

Thus, by the laws of the civilized world, the original occupants of the soil whom God planted there for his own wise purposes, have no right to the soil they inhabit, but a sort of right of occupation; and, in the absence of all right in the Indians, the state of Georgia is entitled to take it, 'and the Indians never having appropriated the mineral riches to their own use,' they having been just discovered.- And when discovered, says the Governor, 'the Indians themselves were not even permitted to have an equal enjoyment of the riches of the earth, but their title was utterly disregarded.' Therefore, the right belongs to Georgia! And, he adds to the Legislature, 'That the great value of the gold mines renders it proper that you should not only provide some other means for securing them from trespass, but also to render them profitable to the State.'

By the intercourse law, the Government of the United States is bound to protect the Indians from trespass and intrusion by the whites. But the Governor says,' the Cherokee Government proved utterly powerless to protect any right or to punish any wrong.' Now, as the State had declared that she had the jurisdiction,soil, and the mineral treasures, what right remained to protect, or what wrong could be done them by entering on the lands and carrying away the gold?

But, the Governor says, he also was without authority to protect any right, or punish any wrong. No law had been passed--no appropriation made--the Governor had no authority to call out the militia, and was quite as powerless as the Cherokee Government.

The President decides that the Indians have a property in the soil, which he will protect, and then sends a military force into the country to execute the intercourse law, and that force is directed to prevent the Indians from digging for gold on the soil which he promises to protect.

The President decides that the State of Georgia has a right to extend her laws over the Indian territory, and the State having extended her laws over the country, the President sends a military force into the territory, now become a part of Georgia, to arrest the citizens of Georgia under the protection of her laws for digging the gold, and the Judges of the State release their citizens from the arrest, because the troops of the United States have no right to make arrests in the State of Georgia for trespass on their own lands.

Thus, the Indians have a right of property which the President promises to protect, yet the property, he says, must be subject to the laws of Georgia--because he says, it lies within a State, and he cannot protect them from the laws. If the property is in Georgia, and under the laws of Georgia, how does he send troops into that State to drive off intruders? And if the gold belongs to Georgia, why does he drive off the Indians? If he is right in enforcing the intercourse law, and protecting the Indians, why does he not protect them effectually?

The Governor says 'the Indian tribes have no where been considered as forming such communities as could be recognized as Governments, and having the power to act nationally.' Yet, almost all nations have treated with them, made war and peace, and acquired territory. They seem to be perfectly competent to cede lands, although they cannot act nationally, and have no rights to cede; and yet Georgia stipulated that the United States should extinguish the title of the Indians: 'Treaties,' says he, 'being only expedients by which ignorant, untractable and savage people have been induced, without bloodshed, to yield up what civilized Governments had a right to possess.' That is, in fine, civilized men have established a customary law of nations for themselves, by which they have a right to all the land which they discover inhabited by Indians. But, as the Indians will not peaceably surrender their country, they have a right to drive them out by force. But as this would be expensive, and cost some bloodshed, a cheap and humane expedient has been adopted of getting possession, by a thing called a treaty, in regard to which, when it ceded land, the Indians have full power to act nationally; but if any of this land (to which the Indians are said to have no right) happens to be guarantied to the Indians, they can acquire no rights, because Indians are not competent to form contracts or compacts.

Thus, by one of those expedients, the Indians are induced to cede to the United States a large territory, in consideration chiefly that the Government undertake to guarantee them the remainder. But then the Indians ('an ignorant and intractable set') are told, the treaties are very good to sell your lands, but then we have no power to guarantee to you the remainder, because the State of Georgia has a right to your lands by right of discovery; what you have sold to us is ours; what you have reserved we cannot guarantee to you-it belongs to Georgia: you have a right to occupy the lands, but as God commanded man 'to be fruitful and multiply, and replenish the earth, and to subdue it,' it follows that the white man is entitled to it all, especially all on this side the Mississippi. The command of God to subdue the earth is certainly fulfilled by subduing the Indians-whether it is done by force or fraud.

The Governor says,' The jurisdiction and soil belongs to the State'- the Indians have a mere right of occupation. But what right of occupation, when he says, 'Civilized Governments have the right to possess' the lands? The State having the soil and the right as a civilized government to possess, treaties are mere expedients to get from these ignorant people, without the necessity of killing them, the possession of the land. And having taken from them all that can be obtained by treaty upon promising a guarantee of the remainder, you now tell them, Georgia as the fee simple and the right to possess those lands,and all the gold; that she has a right to govern them; and that they must submit.

The Secretary of War tell them they are savages; that they cannot change their nature any more than the Leopard his spots: that they are incapable of civilization; that they cannot live under the laws of Georgia, and therefore, they ought to give up their lands to Georgia.