Cherokee Phoenix

Note: This issue is printed in four columns only

Published April, 16, 1831

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Note: This issue is printed in four columns only.

Extract of a letter to the Editors of the New York Observer, dated March 9th 1831.

I have understood that Mr. Sergeant went elaborately into the argument for the Cherokees, and exhibited the fruits of an industrious study of the case, maintaining both by references to numerous authorities, and by the force of independent reasoning, that treaties are the paramount law, and that we were bound by such treaties actually made and ratified. Mr. Wirt with his usual argumentative energy, deep feeling, ' eloquent expression advocated the character of the Cherokees as a foreign nation, knowing if he could establish this point to the satisfaction of the court, every thing desirable would naturally follow. On Friday morning (yesterday) many were in attendance at Court to hear the opinion, the last and not the least act of the Supreme Court of the United States during its present term. Among those present were Mr. Wirt, Mr. Berrien, Mr. Jones, Mr. Livingston, Mr. Coxe, Mr. Wilde of Georgia, the only Georgian present. As soon as Judge Marshall began to read the opinion of the court (of whom only himself, Johnson, M'Lean and Baldwin were present) all rushed forward to the bench, it being otherwise impossible to understand the Chief Justice on account of the tenuity and feebleness of his voice. The reading of the opinion occupied from 20 to 25 minutes, and before he had proceeded far, it was soon ascertained that a majority of the Court had decided the ACTION COULD NOT LIE, the Court had no jurisdiction over the case as presented, because they derived no authority from the Constitution to hear and decide on any case of the kind, unless both parties were sovereigns within the meaning of the Constitution. The Cherokees, and every other tribe of Indians, they decided, are not foreign nations in the sense of the Constitution, but 'domestic dependent Nations,' holding to the United States the relation of wards to their guardians. The Court could not therefore take cognizance of their case. Moreover, if as the case was presented, jurisdiction should be exercised over it, it must be on the ground maintained by Counsel that the Cherokees are a foreign nation. But this would be contravening the Constitution, which has vested this political power in the political branch of the Government, the judicial branch having nothing to do with questions between the states and Foreign Powers. Thus you perceive the responsibility is thrown back upon the President. The laws are plain-the treaties are indisputable, but the President has taken the last final step, and every subsequent one will plunge him deeper in difficulties, until perhaps it will end in impeachment. Judge Baldwin, the youngest member of the Bench, dissented from the grounds of the decision, though he went a more desperate length against the poor Indians themselves. He contended that what are called treaties with the Indians are not treaties in the proper sense of the word because to the validity of a treaty, equal right, privileges and powers of the contracting parties are necessary--that from the nature of the relations existing between the United States and the Indians, treaties could not be formed with them in the same way and the same sense that they could be ratified with sovereign and independent nations, 'c. The opinion was tedious, though able and well written, occupying from 40 to 50 minutes. The tone of dissent was not thought to be very respectful to the other Judges, the Judge seeming to arrogate unusual loftiness of a motive to himself in making up his opinion. Judge Johnson then began to read an opinion of his own, (not uncommon, I believe for him,) but I did not stay to hear it, and probably few others. I would send you the first two, but the Reporter to the Court, Mr. Peters, of Philadelphia, claims them. I understand, as private property, to be taken to Philadelphia, and there published for his benefit. The people of the United States ought to see this decision immediately. Mr. Wilde wished to obtain it to send to Georgia, believing it would very much allay the ferment there, but was not able. Returning to my residence yesterday, which is not far from Judge M's I called in to see him before his departure, which will not be for ten days. He conversed very freely on the subject of the Indians, spoke highly of their improvement in the arts of life and the knowledge of religion, manifested much interest in their present situation and future prospects, and spoke in the most unreserved manner of the change in the policy of the government towards them, of the 'new era' as Secretary Eaton calls it. He concurred in the decision of the Court, but remarked that the matter by no means necessarily ended here. Though the Court could not recognize these Indians or any other in the aggregate as a foreign nation, nor had any thing to do with executing or restraining the execution of laws, they could constitutionally try any case between individual Indians and the State of Georgia. And this we expect will be the way in which the holders of plantations, or the owners of any tract of land, however extensive, will be protected in the enjoyment of their rightful possessions. The claim to sovereignty must be given up, but who shall dare to rob them of their fee simple property? Perhaps I should be cautious in communicating by this channel the whole of our conversation, though not the slightest hint of the necessity of secrecy was suggested--there being another gentleman present-but as Judge M. is one of the most open, frank, and undisguised citizens of this republic, he is not unwilling. I presume, it should be known that he entirely disapproves the conduct of the President towards the Indians--declares it to be an entire departure from the principles and practice of Washington, Jefferson, Madison, Monroe, and Adams; aye, he did say that the manner in which they had been treated was an 'outrage on the feelings of the nation-a stain upon the American character and most deeply to be regretted.' He took no pains to disguise his astonishment that the President should not execute the laws to which his oath bound him. He spoke according to the natural independence of his character, and I doubt not he would rejoice with a majority of the Court in a fair and constitutional opportunity to give JUSTICE to the poor Cherokees. Deliverance, though long delayed, will, we trust, yet come. The delegation were packing up their things to leave the city today.

We published yesterday a brief sketch-very brief- of the grounds of the opinion of the Supreme Court of the United States on the Cherokee case. We regret that we have not the opinion of the Chief Justice at length. It is known to our attentive readers, that in consequence of a law passed at the first session of the last Congress, the Legislature of Georgia passed a law extending the jurisdiction of that State over the lands of the Indians within the territory of Georgia. The right of the State to pass such a law, was disputed on the part of the Cherokees, and in consequence their case was brought before the Supreme Court praying for an injunction on the part of the Cherokee Nation, to restrain the State and its officers from exercising such jurisdiction.

In last Monday's Centinel, we gave a brief sketch of the argument of Mr. WIRT, of counsel for the Indians, in which it was attempted to be shown, that the Cherokee nation was a foreign nation, and like all other foreign nations, was free, sovereign, and independent, both of Georgia and of the United States, and consequently that any law of Georgia to extend jurisdiction over their territory, was repugnant to the Constitution of the United States and null and void. The opinion of the Supreme Court did not sustain the reasoning of the learned counsel on these principles, and did not consider the Cherokees as a foreign nation. From the very brief sketch of the opinion which has reached us, we infer that, in considering the Indian Tribes in question, as a nation under the 'pupilage' of the United States, they are to be regarded in contemplation of law, strictly as individuals, and, and as such are to be protected in their rights and privileges. If then the lands in question have belonged to them, and they have not willingly alienated them according to law, the Indians may still be protected by possession of them. Whether a new process will be instituted, time will soon determine. Col. Cen.


It will be seen from the following outline of the decision of the propriety of which we have no inclination to dispute, that the Supreme Court has refused to entertain jurisdiction of the case in which the Cherokees have appeared as a foreign nation. It by no means follows that they are remediless under the grinding oppression practised against them; but they must bear and suffer for the time being. The noble philanthropy which has enlisted the highest talent on their behalf, will still champion them in another, and, it is earnestly to be hoped, a more successful effort.------------ New York Spectator.


The opinion of the Supreme Court in the Cherokee case is represented, in some of the Administration appears, as a sanction of the pretensions and conduct of Georgia with regard to the Cherokees and their territory. Here is a gross error. The Court did not mean to give confirmation or countenance to Georgia. They merely declare that they have not the power to interfere in the manner required on the part of the Indians.---Nat. Gaz.

The statement of the National Gazette, that, in the late decision of the Supreme Court on the notion on behalf of the Cherokee Nation, the Court merely declared that it has not the power to interfere in the manner required, is entirely correct. A different impression, however, seems to have been received by some, and the notion generally entertained of the effect of that decision appears to us to be not very definite. This is not at all surprising to those who have not before them the opinion of the Court, which discloses the whole merit of the legal question.--

Nat. Intelligencer.


We observed, the other day, that a correspondent of 'The Globe' expressed an opinion that the National Intelligencer seemed to have misunderstood the opinion of the court; and we have since seen, in the Richmond Enquirer, a letter from Washington, and probably from the same hand, containing the same suggestion. There seems to us to be a disposition to make the opinion of the Court to be what it is not, in order to sustain the Executive of the United States in the ground which it has taken on this subject. Others, again, consider the controversy between Georgia and the Cherokees as 'settled' by this decision. We repeat, what we have already said, that these questions were not touched by the opinion of the Court. They are all as open as they were before that decision, except upon the particular point that the Cherokees have no remedy in the Courts of the United States in the capacity of a foreign nation. We used, we believe, the very words of the opinion of the Court, when we said that it considered the Cherokee Nation or tribe as in a state of pupilage to the United States-as a domestic dependent nation-as being in a relation to the Union akin to that of a ward to a guardian. The separate opinion of one of the Judges, it is true, took much broader ground against the claims of the Cherokees; and if the Court had adopted his opinion as their own, The Globe and The Enquirer would be entirely justified in supposing that we did not understand what we heard with our ears, and which came with force irresistible over a mind wholly uncommitted upon the subject.

National Intelligencer