Cherokee Phoenix

From the North Carolina Spectator

Published January, 29, 1831

Page 4 Column 1a-2b

From the North Carolina Spectator.


MR. EDITOR:- Sir, you will oblige a friend by giving this a place in your valuable paper.


Fellow Citizens:- In looking over the last message of his Excellency, Governor Owen, I am well pleased with his views on several subjects intimately connected with the interest, happiness, and welfare of the State of which he has the honor of being the chief magistrate. But, with regard to some others as a citizen of North Carolina, I am not satisfied, and beg to offer to you my views upon those parts of that valuable document, which I think objectionable.- And 1st, as to that part in which he recommends the Legislature to extend the laws of the State over that portion of its territory occupied by the remnant of Cherokees, who have remained within the State. Secondly, the part in which he says, 'the tariff of duties imposed by the Congress of the United States upon imports, has ever been deemed not only unwise, but unconstitutional, and calls at this time for your solemn protest.'

I shall take the liberty of observing upon those points as they are arranged in said message. The 1st point or subject of enquiry is, has the State of North Carolina the right at this day of extending her laws over the Cherokee Nation, so far as her chartered limits extend, so as to subject that nation to their obedience and to yield to their binding enactments? In order to arrive at the proper solution of the question, it is necessary and proper to examine the situation and character of that people-whether they are free and independent people-and whether they have been so acknowledged by the treaty making power of the United States, and by the framers of our Federal Constitution? Now if the Cherokees are a free and independent people, does it not follow that they have the right of self government. And it matters not whether they have an absolute right to the soil, or only a qualified one by occupancy. In either case they have the jura summi imperii, or right of sovereignty as long as they remain in possession. But it is contended by some that they have only a pedis possession, as the Bear or Fox, in traversing the forest. How far that position may be correct, when applied to some Indians in their savage state, it is not necessary for me at this time to controvert; it is sufficient to prove that such a case is not applicable to the Cherokee nation at this day, they having made a considerable progress in civilization, and become the cultivators of the soil, in a degree, equal if not superior to many of the white people of the country. Now let us examine the treaties of the united States and the Cherokee nation by which the national character of that people is recognized, and the lands of which they are now in possession, have been solemnly granted to them by the treaty making power of the United States. The 1st was concluded at Hopewell, on the 28th of November 1785. In the third article of that convention, the Cherokees acknowledge themselves to be under the protection of the Government of the United States. The fourth article defines the boundary of the lands ceded by that treaty to the United States; and the fifth article prohibits any citizen of the United States from settling on any part of the land allotted to that nation, westward or southward of that line, upon pain of forfeiting the protection of the General Government to be punished at the pleasure of the Indians. In the sixth article it is provided that the Cherokee nation shall surrender up to the United States, all offenders of their nation to be punished according to the ordinances of the United States, (not according to the laws of North Carolina). The 2nd convention between the United States and the said nation, was held on the bank of Holston River, on the 2d day of July 1791. In the second article the Cherokees place themselves under the protection of the United States, and they promise and engage that they will not hold any treaty with any foreign power; with any individual State, or with individuals of any State. The fourth article defines the boundary line between them and the whites: and the seventh article is in these words,'the United States solemnly guarantee to the Cherokee Nation, all their lands not hereby ceded.' In the tenth article the Cherokees promise to deliver to the United States, all offenders of their nation, to be punished according to the laws of the United States, (not of any individual State.) The eleventh article declares that if any citizen or inhabitant of the United States, shall go into any town, settlement, or territory belonging to the Cherokees and shall there commit any of the offenses therein mentioned, 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 the said districts against a citizen or white inhabitant thereof, would be punishable by the laws of such State or district, such offender of offenders shall be subject to the same punishment as if the same had been committed within the jurisdiction of the State or district to which he or they belong against a citizen, or white inhabitant thereof. The convention at the council house, near Tellico, between the United States and the Cherokee Nation, on the 2d day of October 1798, makes some alterations in the boundary lines designated by the former treaties, and confirms all former treaties, and that the same shall be carried into effect in good faith by the contracting parties. Now, fellow citizens, do not these treaties, first acknowledge the power and capacity of the Cherokee Nation to make treaties. Secondly, that they have a sovereign power over the soil, at least when they are in possession of the same, and thirdly, that no State has the right of extending its laws over them, and fourthly, and lastly, that they have a right to make laws for their own government. But the claim of the Cherokees, and other tribes of Indians, does not depend alone upon the faith of the existing treaties, to guarantee to them the right to be acknowledged free and Independent nations. The Constitution of the United States recognizes them as such. In the eighth section it declared that Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. By the language of the Constitution, are not these tribes, distinguished from foreign nations, and from the people of the several States? Therefore as they are not identified with foreign nations, nor with the people of the several States, it irresistibly follows, that they are a separate and distinct people and capable of being treated with, and having been treated with as such. The question now to be considered is how far those treaties are of binding force upon the people of North Carolina? The sixth article of the Constitution of the United States is in these words, 'this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.' A component part of the treaty making power was the State of North Carolina, through her senators. Therefore she is now estopped from claiming those lands, which she hath so solemnly guaranteed to the Cherokee Indians. But, fellow citizens, independent of all treaties, and the Constitution of the United States, is it not cruel, unjust, anti-republican, and a usurpation of power; to subject any people to the binding force of laws, in the enactment of which they have had no voice. For such, we resisted the strong arm of Great Britain, and against which all free people ought to contend.