Cherokee Phoenix


Published May, 21, 1831

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To the Honorable Chief Justice, ' the Associate Justices of the Supreme Court of the United States, sitting in chancery.


In another case, a bill in chancery was filed in the Superior Court of Hall County, in July last, in the name of George R. Gilmer, Governor of Georgia, against sundry Cherokees, praying for an injunction to restrain them from digging the gold mines within their territory, which, by the laws of that territory they were authorized to do. In the bill, a title is asserted for Georgia to the whole of the Cherokee territory, as belonging to the ungranted and unsurveyed lands of the State of Georgia. The Cherokee mines are consequently claimed as part of those lands; and the bill being sworn to before the same Judge Clayton, he awarded an injunction against the parties named in the bill as defendants, they being Cherokee citizens, enjoining and commanding them to desist from those mines, under the penalty of twenty thousand dollars; and they were are the same time, summoned to answer the bill thus filed against them in Hall County. Under the authority of this injunction, the Sheriff of Hall County supported by a colonel, a captain, and thirty or forty militia of the state of Georgia, entered the Cherokee territory, came to the gold mines, and arrested a number of the Cherokees, who were engaged in digging gold; the persons thus arrested were, at first, rescued by the United States troops, and the Sheriff and his party themselves, made prisoners by those, but after conducting them (sic) troops; fifteen or sixteen miles, a council of examination was held, and an exhibition of their respective authorities made, which resulted in the releasement of the Sheriff and his party, and a declaration by the commanding officer of the United States troops that no farther protection could be extended to the Cherokees at the gold mines, as that officer could not interfere with the laws of Georgia. The Cherokees, notwithstanding, continued their searches for gold, as they had a right to do, and were again visited by the sheriff and Georgia militia, who ordered them to desist from taking the gold of Georgia; under the penalty of being committed to jail. Some of the Cherokees replied, that they were peaceably pursuing this business on their own soil, and were unconscious of having committed any trespass on the rights of Georgia; and if it was supposed by others that they had, they were willing to abide the consequences, even if they were to go to jail; that it was unnecessary to raise the militia of Georgia to take them, as the sheriff alone could do it, if he thought proper to arrest them. In place of arresting them however, the militia destroyed some of the machinery of the Cherokees for gleaning gold, committed some other trespasses with their fire arms on the property of a Cherokee woman, and with loud imprecations against 'the poor devils,' (the Cherokees,) retired for that time. On the 9th of August following, however, the sheriff of Hall County again appeared at the Chestatee gold mines in the Cherokee territory with a guard of four men, under process of the state of Georgia, and there arrested three Cherokees what were peaceably and lawfully engaged in digging for gold in those mines, the property of their own nation; the charge being that these Cherokees had disobeyed Judge Clayton's injunction in continuing to work at those mines. Under this arrest these three Cherokees, to wit: Elijah Hicks, Benjamin F. Thompson, and Johnson Rogers, were taken, as state prisoners of Georgia, under an armed guard, were forcibly carried to the courthouse of Clarke County, in the state of Georgia, a distance of about seventy miles, before the aforesaid judge of the state of Georgia, Augustin S. Clayton; were, then and there sentenced by him to pay ninety three dollars cost, and to stand committed to prison till paid; and were further required each to give a bond in the penalty of one thousand dollars for their personal appearance at the next Superior Court of Hall County, in Georgia, on the third Monday of September, then ensuing, to answer to the charge of having violated that injunction; and in the meantime, strictly to obey the same. The said Cherokees were kept in custody by the aforesaid sheriff and his guard, on that arrest for five days. They paid the cost, and gave the bond ordered by Judge Clayton, and did appear at the Superior Court of Hall County, on the third Monday in September, where they were discharged by his honor, Judge Clayton, on the ground that the Governor of Georgia could not be prosecutor in the case; but the costs which they had been required to pay, were not refunded to them; nor did they receive any compensation or even apology for the lawless outrage which had been committed on their persons. In confirmation of the facts herein set forth in relation to this case, these complainants annex hereto, as part of their bill, a copy of the bill, in junction and subpoena in the case of George R. Gilmer, governor of Georgia, against David England and others, together, with the affidavits of Elijah Hicks and John Martin, all marked B.

Numerous other instances might be stated in the harassing and vexatious manner which the State of Georgia is carrying into effect her aforesaid unconstitutional laws against the persons and property of the Cherokee people, without regard to sex or age. But these cases will suffice to show that the determination is formed by the State of Georgia to carry them into full effect: and indeed this determination was solemnly announced by the Governor of Georgia, by two Proclamations issued by him in the month of _____ last, of which, copies; are hereby annexed, and those complainants pray that they may be taken and considered as part of this their bill.

These complainants had, at one time, flattered themselves, that if the State of Georgia should persist in enforcing these unconstitutional laws upon them, they could have been protected against such an attempt by the troops of the United States stationed at that quarter.- But shortly after the arrest of the Cherokees at their gold mines, as before stated, a written notice was sent by the commanding officer of the troops to John Ross, the principal Chief of the Cherokee Nation, apprising him that these troops, so far from protecting the Cherokees, would cooperate with the civil officers of Georgia in enforcing their laws upon them: a copy of which notice is also hereto annexed as part of the bill.

Under these circumstances, your honors cannot but see that, unless you shall interpose for their protection, these complainants have before them no alternatives but these: either to surrender their lands in exchange for others in the western wilds of this continent, which would be to seal, at once, the doom of their civilization, Christianity, and national existence; or to surrender their national sovereignty, their property, rights,and liberties guaranteed as these now are by so many treaties, to the rapacity and injustice of the State of Georgia: or to arm themselves in defence of these sacred rights, and fall sword in hand on the graves of their fathers. How far either of these catastrophes would redound to the honor and good faith of the United States, these complainants willingly submit to the arbitrament of this enlightened and honorable court.- That these proceedings of the State of Georgia are wholly inconsistent with equity and good conscience, and tend to the manifest wrong and oppression of these complainants, and that they are equally violative of the good faith of those treaties to which she is herself a party, as well as of the constitution and laws of the United States, these complainants fearlessly allege; that the wrongs with which they are menaced are of a character wholly irremediable by the common law: and that these complainants are wholly without remedy of any kind, except by the interposition of this honorable court, they have as little hesitation in averring.

But they are advised this honorable court does possess the power to interpose in their behalf. They beg leave, humbly and respectfully, to suggest, that by the constitution and laws of the United States, original jurisdiction is conferred on this court in controversies between a State and a foreign State, without any restriction as to the nature of the controversy; and the policy of the provision manifestly contemplates every case in which the claims or conduct of a single State towards a foreign State may jeopard the peace, safety and good faith of the United States; in all which it is essential that the controversy should be drawn to the forum of the nation, instead of being decided by the prejudiced tribunals of the litigant State. By the same Constitution it is provided, that that Constitution and the laws of the U. States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary, notwithstanding. Under which last provision your complainants are advised that your honors have, on various occasions, decided that laws of particular States were unconstitutional and void, on the ground of being repugnant to the constitution, laws, and treaties of the United States.

That your complainants are a foreign state is not only evident by the only test which can be properly applied to such a question, the test of allegiance but has been again and again and still is unequivocally admitted by the United States, by the fact of their being acknowledged and treated with, in that character by the properly constituted authorities of the United States.

They bring before your honors a question of property and of personal as well as national rights, involving liberty and life, dependent for their ascertainment, on the construction of these treaties which have been declared to be the supreme law of the land.

They allege that laws have been passed by the state of Georgia, in violation of those treaties, as well as the constitution and laws of the United States by which the property and rights of these complainants have been wrongfully invaded and are still threatened with perpetual and irremediable invasion and final destruction.

They humbly and respectfully claim from your honors, in the exercise of your high judicial functions, that these laws of Georgia may be declared to be void, and their execution perpetually enjoined, because they are repugnant to those treaties and to the constitution and laws of the United States; because, being thus repugnant they violate those compacts to which the state of Georgia is herself a party; because they tend to the utter destruction of the property and dearest rights of your complainants, which stand protected by these treaties, and because they tend to compromit the peace, safety, and honor of the United States, for the preservation of which the treaties constitution, and laws of the United States were manifestly placed under the judicial guardianship of this high and honorable court, by the constitutional declaration, that they should be the supreme laws of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

Your complainants show farther unto your honors, that John Ross is the principal chief or executive head of the Cherokee Nation; and that, in a full ' regular council of that nation, he has been duly authorized to institute this, and all other suits which may become necessary for the assertion of the rights of the entire nation; as will appear by a copy of the legislative resolution made in the premises, and hereto annexed as part of this bill.

In tender consideration of all which, inasmuch as your complainants are wholly remediless in the premises, except by the interference of this honorable court; to the end, therefore, that the said State of Georgia, one of the United States of America, may be made defendant hereto, with apt words to charge her as such ' that, she may by proper officers, according to the established form of proceeding in this court, in like cases, true, fill, and perfect answer make to all and singular the promises, as fully and particularly as if the same were herein again especially repeated, and they thereto particularly interrogated; that the said State of Georgia, her governor, attorney general, judges, magistrates, sheriffs, deputy sheriffs, constables and all her officers, agents, and servants, civil ' military, may be enjoined and prohibited form executing the laws of that State within the boundary of the Cherokee territory as prescribed by the treaties now subsisting between the United States and the Cherokee Nation, or interfering in any manner with the rights of self government possessed by the Cherokee Nation within the limits of their territory, as defined by treaty: that the two laws of Georgia before mentioned as having been passed in the years 1828 and 1829 may by the decree, of this honorable court be declared unconstitutional and void; and that the State of Georgia, and all her officers, agents, and servants may be forever enjoined from interfering with the lands, mines, and other property, real and personal, of the Cherokee Nation, or with the persons of the Cherokee people for an account of anything done by them within the limits of the Cherokee territory: that the pretended right of the State of Georgia to the possession, government, or control of the lands, mines and other property of the Cherokee Nation, within their territory may, by this honorable court, be declared to be unfounded and void, and that the Cherokees may be left in the undisturbed possession, use, and enjoyment of the same, according to their own sovereign right and pleasure, and their own laws, usages, and customs, free from any hindrance, molestation, or interruption by the State of Georgia, her officers, agents, and servants; that these complainants may be quieted in the possession of all their rights, privileges, and immunities, under the various treaties with the United States; and that they may have such other and farther relief as this honorable court may deem consistent with equity and good conscience, and as the nature of their case may require.

May it please the Court to grant to your complainants the United States' most gracious writs of subpoena and injunction, commanding enjoining, 'c 'c., and these complainants, in duty bound, will ever pray, 'c. 'c.