Cherokee Phoenix

From the Flag of the Union

Published October, 5, 1833

Page 2 Column 3b

From the Flag of the Union.

The following is a copy of a letter addressed by Governor Gayle to the Secretary of War, in relation to the killing of H. Owen, a United States' soldier. It being a matter of public moment, we solicited a copy of the letter for publication.


Tuscaloose, 29th Aug. 1833

Sir:- An attempt by the Deputy Marshal of the southern district of Alabama to remove an individual by the name of Owens, from premises, alleged to belong to an Indian, has resulted in the death of the supposed trespasser. A detachment of the United States' soldiers on the requisition of the Deputy Marshal, was placed under his direction, and the deceased was shot b y one of these soldiers. The frequent incursions of this officer with an armed force, among our inhabitants, residing in the country acquired from the Creeks, with the purpose of settling disputes between them and the Indians, have produced very general dissatisfaction, which, since the killing of Owens, has risen to an excitement, that if not quieted, will lead to excess equally unpleasant to the General Government, and to the authorities of this State.

It is not my purpose to show that the conduct of the Marshal was improper, or that an offence has been committed against our laws, but to request that the Government refer the complaints of the Indians, to a tribunal less objectionable than that of the Marshal with an armed soldiery.

At the last session of the General Assembly of this state, the whole of the Creek country within the limits of the state, was laid off into counties, which were organized so as to give full and complete effect and operation to our laws. It was understood that no objection would be raised by the government to its settlement by the white people, provided they abstained from intruding upon the reservation secured to the Indians by the treaty of the 24th of March 1832. The fifth article of that treaty, by obvious construction, permits settlements upon any of the lands ceded, except reservations 'after the country is surveyed, ' the selections made.' The Indians therefore cannot resort to those settlements as a ground of just complaint; and it would not be difficult to show that intruders even upon the selections, cannot legally be removed by the Marshal.

I lay it down as a correct position, that where the government has disposed of its lands, all disputes and controversies relating to their title, or to the right to their possession, are referable only to the judicial tribunals of the country. I do not deem it necessary, however, to discuss this point at present, relying as I do upon the disposition of the President, to cause the treaty to be carried into effect by such means only, as are clearly authorized by the Constitution and laws. Encouraged by the treaty, by the laws of this state, and by the express permission of the government, to settle upon and occupy those lands, a population has moved upon them, equally respectable with that of other sections of the state and to which, in point of numbers, the Indians bear but a small proportion. In their present situation, they cannot be regarded as a distinct tribe, for as such, they have disappeared, ' been lost in the large community now in possession of their ancient birth right. They are permitted by the treaty to sell their reservations, with the approbation of the President, and it is quite notorious, that many of them have sold and otherwise disposed of them. They have entered into contracts with their white neighbors, as well in relation to other matters, as their lands; and upon inquiry, it will be found, that in many instances, their dissatisfaction and complaints arise out of these contracts. I these cases, it will not be pretended, that any authority can be conferred on the Marshal to interfere. They form the proper object of judicial investigation, and courts are competent, and at all times opened to decide them. By the laws of this State, whenever an individual is entitled to the possession of lands, he can, by a summary proceeding before a Justice of the Peace, expel an intruder or trespasser within a few days. I transmit to you herewith our statute upon this subject. It has for many years been in force and has fully accomplished the purposes for which it was intended.

Whatever may be the opinion of the President, as to the powers of the government to eject intruders by force, without the forms of law, I am persuaded, that under existing circumstances, he will concur in the opinion, that this law will be equally effectual,and that the Marshal at the head of a band of armed soldiers, in the bosom of a peaceable, orderly, and quite community,cannot, and ought not to be permitted to settle questions, that are in their character strictly and properly legal.

With distinguished consideration, I have the honor to be your ob't ser'vt.


Hon. Lewis Cass, Sec'ry War.


INDIAN AFFAIRS.- In relation to the unfortunate death of Colonel Hardeman Owen, who was killed lately by a party of United States' soldiers, at his residence in the Creek Nation, the Flag of the Union of Thursday last, says: 'We are authorized to say, that the Governor of Alabama has requested the Marshal to abstain from any further interference between the citizens of the new counties and the Indians. He has received letters of complaint from individuals of high respectability, and has addressed a communication to the War Department, requesting that the troops may be withdrawn. The Governor does not recognize any authority in the Marshal, or the troops of the United States, to settle disputes between our white and Indian population, and has come to the determination to prevent by all proper means, a mode of proceeding so repugnant to the constitution ' laws of the state. The utmost confidence is entertained that the President has no disposition to incommode our citizens, and that the troops will be withdrawn at the request of the Governor.' - Journal of Commerce.