Cherokee Phoenix


Published January, 22, 1831

Page 4 Column 1a-3a


In another part of our paper today, will be found the substance of an address delivered by Colonel John Lowrey, the agent appointed by Secretary Eaton, to negotiate with the Cherokee Indians, with the reply of the Council of that nation.

We have always regarded the removal of the Indians as a matter of much importance to the states, as well as to the Indians themselves. But we had always understood it an object, to effect, which, no violent measures on the part of government would be resorted to; but that it should be brought about by fair and voluntary compact on the part of the Indians,- in which it was intended by the government to recognize them as a sovereign community. We were therefore much surprised at the doctrines presented in the address of the agent; though we cannot conceal the fact, that, in our estimation, the circumstance of the state of Georgia being permitted to extend her jurisdiction over the Indian territory, was calculated to prepare us for the consummation of the most oppressive violence.

In the council, the Indians are plainly told that Georgia claims a right to extend her jurisdiction over the Territory claimed by the Cherokees. It is also plainly intimated that she will proceed to 'survey your lands and allot them to her citizens.' A strong effort is made to excite the pity and arouse the fear of the nation.

Is it possible! Does the general government of the United States indeed, stand thus committed by a pledge and guaranty solemnly entered into with the Cherokee to protect them in the occupancy of their territory, when, in fact, the government had a long time before, by compact with Georgia ceded the territory in question to that state, ' pledged the faith of the states to guaranty her claims? And has the United States now arrived at the crisis which compels them to acknowledge their inability to redeem the faith of the nation solemnly pledged; and to sue for terms, offering unto the Indians a remuneration sufficient to indemnify them for the violation of the treaty on behalf of the government? Such an artifice might have been practiced upon the aborigines a century ago with better success. They have not become too much enlightened to suffer themselves to be hoaxed in this manner. But what are the facts? The United States made no guaranty to the State of Georgia, which can, by any possibility, come in collision with the guaranty covenanted to the Indians.

In a compact entered into between the states and Georgia, it was agreed on the part of the states, in consideration of Georgia ceding her claims on certain territories, that the United States would extinguish the Indian title within the geographical limits of Georgia, so soon as it could be done upon peaceable and reasonable terms. What then, we ask, becomes of the opposing claims and e=the dilemma of the states? We are happy to say they have no existence but in the head of the agent.

The Indians are next threatened with the loss of their lands without any equivalent; unless they accept of the proposition now being offered unto them. It is said that Geo. holds them by a prior guaranty, and therefore in the event of an appeal to the Judiciary she would sustain her claims against the present occupants. He says in '1778 Congress had guarantied to Georgia her sovereignty. Its boundary lines were defined and marked,' that 'it is true that in the year '91, by the treaty of Holston, the Cherokees were guarantied the right of the soil not then ceded.* * * If two guaranties are made which shall prevail? Must not the oldest prevail?' This in the agent is a bold attempt to impugn the government he represents. We blush for our country when such men are legally constituted the slanderers of our government.

We say, the declarations of the agent, to the contrary notwithstanding, that the state never guarantied either the soil or the jurisdiction of the Indian territory to Georgia; and we fearlessly say, moreover, if such a guaranty had been made by the states, at any period within our history, such guaranty would have been a perfect nullify. A claim set up by the state of Georgia to the Indian territory could not be sustained by such a guaranty, because the Indian title is derived from the laws of nature, and sustained by the municipal law of nations.

The states could not be liable to Georgia, because it is guarantying against a known defect. If A. guaranties to B the freehold of C, B knowing the right to be exclusively in C, B cannot make A liable for a false guaranty, for reasons to obvious to need demonstration.

By the law of nature anyone who should become occupant of anything became the exclusive owner while he continued the occupancy. This, however, only extended to the occupancy of territory, to what was used for sitting, walking, or resting upon; and as soon as the occupant abandoned his property in the occupancy, his right became extinct, and the next one who came along might acquire a title in the same manner. But the municipal law of nations remedies the inconveniences that would frequently occur in ascertaining the real owners of the soil. The municipal law gives the discoverer who appropriates the newly discovered territory to his own use, the exclusive right to the soil and jurisdiction. And this title cannot be extinguished but by the finder abandoning it or transferring it into other hands.

The Cherokees claim their territory as the original occupants. This claim has been recognized by the Federal Government ever since we have been their neighbors. Indeed, this claim was distinctly admitted into Hopewell treaty in 1785. No time nor place nor circumstance can be cited in evidence of their title ever having been extinguished; therefore they cannot be ousted, until a better right can be made out by some other claimant.

As to the doctrine that they have become amalgamated, and citizens of the United States, and therefore liable to have the laws of the States extended over them, it need only be said, if they ever possessed the power of self government, either they have relinquished that right, or it has been taken from them, or they are a sovereign community. We look, in vain, reign history of that people for the termination of their sovereignty.

The states in the Treaty of Hopewell acknowledged their right to make War upon the states, and pledged the faith of the government to deliver up to them, any citizen of the United States who might perpetrate any of the crimes therein specified to be punished or not according to their discretion and according to their own usages and laws. Whoever thought of the government of the United States recognizing the right of any class of her citizens to make war upon the States? Or where shall we look for a precedent of a government entering into a compact with a class of her citizens, to deliver up any offenders against them to be punished according to their laws and customs.

In 1791, another treaty was had with the Cherokees, and by the suggestions of General Washington another compact was solemnly entered into in these words:

'Art. 7 The United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded.'

If any doubt exists as to their jurisdiction, the 11th article of that treaty settles the question unequivocally--it is in these words:

'If any citizen or inhabitants of the United States, shall go into any town, settlement or territory belonging to the Cherokees, and shall there commit any crime upon or trespass against the person or property of any peaceable and friendly Indian, which if committed within the jurisdiction of any state, or within the jurisdiction of either of said districts, against a citizen or white inhabitant thereof, would be punished by the laws of such state or district, such offenders shall be subject to the same punishment, and shall be preceded against in the same manner as if the offence had been committed within the jurisdiction of the state or district to which he or they may belong against a citizen or white inhabitant thereof.'

Now what has become of the government pledged to the Indians? We might make the appeal to the friends of the government- is not the states solemnly bound to protect the Cherokees against the unparalleled aggressions and oppressions of Georgia? Nothing we presume is more demonstrable.

Troy Times.