Cherokee Phoenix


Published April, 2, 1831

Page 3 Column 3b-5a



Our readers will recollect that on the 15th of February the Senate of the United States passed a resolution, requesting the President 'to inform the Senate whether the provisions of the act entitled `An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers' passed the 30th of March, 1802, have been fully complied with on the part of the United States' Government, and if they have not, that he inform the Senate of the reasons that have induced the Government to decline the enforcement of said act.' To this resolution the President replied in a message, dated February 22d. We cannot on account of its length, copy it entire into our columns, but shall give a specimen of it by inserting a few extracts. It is a well written message, probably penned by Mr. Berrian. The reason for withdrawing the troops from the Cherokee Nation is given in the following paragraph.

By the 19th section of this act, it is provided that nothing in it 'shall be construed to prevent any trade or intercourse with the Indians living on lands surrounded by settlements of citizens of the United States, and being within the ordinary jurisdiction of any of the individual States.' This prospective in its operation, and as applicable not only to Indian tribes which at the date of its passage were subject to the jurisdiction of any State, but to such also as should thereafter become so.- To this construction of its meaning I have endeavored to conform, and have taken no step inconsistent with it. As soon, therefore, as the sovereign power of the State of Georgia was exercised, by an extension of her laws, throughout her limits, and I had received information of the same, orders were given to withdraw from the State, the troops which had been detailed to prevent intrusion upon the Indian lands within it; and these orders were executed.

The President does not state the case fairly, and the reason he gives for withdrawing the troops is very unsatisfactory, even admitting the doctrine upon which he builds that reason to be correct. It is very well known that the troops were not sent to prevent intrusion upon the `Indian lands' within the chartered limits of Georgia, only but they were sent to prevent intrusion upon the Cherokee territory. It is known also that but a part of this territory lies within the limits of Georgia. The President ought to have been a little more explicit in meeting the inquiry of the Senate. If the exercise of the sovereign power of Georgia was the reason of withdrawing the troops from that part of the Cherokee nation, what was the reason for withdrawing them from other parts where the sovereign power of Alabama, Tennessee, and N. Carolina has not been exercised? This question the President has left unanswered, and we presume is not disposed to answer.

A question similar to the above, we understand, was proposed by the Cherokee Delegation to the Secretary of War, who made evasive answers as long as he could, but upon being urged, replied that the Cherokees had appealed to the Supreme Court, and they need not expect protection from every quarter.- We copy another paragraph from the message.

Amongst the enumerated grants of the Constitution, that which relates to this subject is expressed in these words: 'Congress shall have power to regulate commerce with the Indian tribes.' In the interpretation of this power, we ought certainly to be guided by what had been the practice of the Government, and the meaning which had been generally attached to the resolves of the old Congress, if the words used to convey it do not clearly import a different one, as far as it affects the question of jurisdiction in the individual States. The States ought not to be divested of any part of their antecedent jurisdiction, by implication or doubtful construction. Tested by this rule, it seems to me to be unquestionable that the jurisdiction of the States is left untouched by this clause of the Constitution, and that it designed to give to the General Government complete control over the trade and intercourse of those Indians only who were not within the limits of any State.

We are not skilled in the rules of interpretation, but we would suppose that we ought also to be guided by what has been the practice of the Government since the adoption of the Constitution, and how the framers of that Constitution understood the clause, 'Congress shall have power to regulate commerce with the Indian tribes. That the expression Indian Tribes, was understood to mean all Indians who lived in bodies or communities, is evident from the uniform practice of the Government.

The views which the President entertains in regard to the treaties are expressed in the following extract:

As early as 1784 the settlements within the limits of North Carolina were advanced further to the west than the authority of the State to enforce an obedience of its laws; others were in a similar condition. The necessities therefore, and not the acknowledged principles of the Government must have suggested the policy of treating with the Indians in that quarter, as the only practicable mode of conciliating their good will. The United States at that period had just emerged from a protracted war for the achievement of their independence. At the moment of its conclusion, many of these tribes, as powerful as they were ferocious in their mode of warfare remained in arms, desolating our frontier settlements. Under these circumstances, the first treaties, in 1785 and 1790, with the Cherokees were concluded by the Government of the United States, and evidently sanctioned as measures of necessity, adapted to the character of the Indians, and indispensable to the peace and security of the western frontier. But they cannot be understood as changing the political relations of the Indians to the States, or to the Federal Government. To effect this would have required the operation of quite a different principle, and the intervention of a tribunal higher than that of the treaty making power.

If indeed necessities suggested the policy of treating with the Indians when they were hostile, what suggested the policy of treating with the Choctaws just the other day, when no such necessity existed? Let President Jackson answer that. Let him tell the world what reasons actuated him to send commissioners to treat with those Indians, and when the treaty was made to submit it to the Senate for its ratification. If the Constitution gives him no such power, why does he assume it? What becomes of his professed adherence to that Constitution when he violates it with his eyes open? If his predecessors were wrong in treating with the Indians, they were conscientious-they considered them as capable of entering into treaties. But President Jackson says they are citizens of the States, and yet treats with them as independent communities! Who manifests less consistency?

In the foregoing extract there is one sentence which is worthy of particular notice. We will repeat it. 'At the moment of its conclusion, [Revolutionary War] many of these tribes, as powerful as they were ferocious in their mode of warfare, remained in arms, desolating our frontier settlements?' Now it will be remembered by the attentive reader, that the right of jurisdiction and of soil has been urged by Georgia and her partizens on the ground of conquest. But what says President Jackson? At the close of the Revolutionary War, (the only time when they may have been conquered) the Cherokees and other tribes remained in arms, desolating our frontier settlements. This is something like putting his veto to one of their `knockdown' arguments. Let us hear no more of the right of conquest.


We hope our readers will attentively peruse that part of Mr. Everett's Speech on the Indian question which we this day publish. We shall insert the remaining part in our next.


In our account of the late visit of the Georgia Guard to this place we neglected to note one circumstance which ought to be known to the public. It appears that about 8 or 9 o'clock in the evening two young men were passing on the public road which leads by the house of Mr. Tarvin, where these troops were encamped, when they were fired upon by the Sentinel. It is said, and so the Georgia Judge, decided, that this Guard is not an army, but this thing of shooting at a peaceable man when travelling on a public road seems to intimate otherwise.