Cherokee Phoenix


Published December, 7, 1833

Page 2 Column 1a


From the Baltimore American


Ten columns of the Washington Globe of Saturday are filled with a correspondence between the Secretary of War, and Governor Gayle of Alabama, in relation to the embarrassing and painful state of affairs in the Creek country of that state. Our limits will not permit us to republish it entire, its importance demands that the material parts should be laid before our readers. Contemporary with this publication, we have received a proclamation of Governor Gayle, preparatory to an apprehended conflict with the forces of the General Government. He calls upon the 'civil officers' of the counties of the Creek Nation to be 'attentive to the people, upon whom any crimes may be committed, or upon whom or whose property there may exist well founded apprehensions that crimes are intended to be committed, by issuing all such warrants and other process as may be necessary to bring offenders to justice, particularly such as are guilty of murder, false imprisonment, house burning, robbery, forcible entries, and all such like heinous offenses,'- meaning by this description, the measures of the United States' Marshal to enforce the removal of trespassers. He further exhorts the people to aid the magistrates in the execution of all legal process, when duly called upon, and enjoins a 'ready obedience to any precept or process that may issue out of the Courts of the United States or of the State.'

The proclamation bears date on the 7th of October.

The documents in the Globe consists of a letter to Governor Gayle from the Secretary of War, dated Sept. 5; a reply from the Governor dated at Tuscaloosa, on the 2d of October, and a concluding letter from the Secretary of War, dated 22d instant, enclosing letters of Messrs. Gallatin, Crawford, and Calhoun, in similar cases, and a proclamation of Mr. Madison. We propose giving the substance of them, avoiding those repetitions which were unavoidable in an argument carried on by letter, where there is so much discrepancy in opinion, and so many disputed questions of fact. Before stating the points of difference, we ought to promise, by quoting the following articles, which is part of the treaty of 1832, by which the lands in question were ceded to the United States:-

Article 5th- 'All intruders upon the country hereby ceded shall be removed therefrom in the same manner as intruders may be removed by law from other public land until the country is surveyed, and the selections made; this article shall not operate upon that part of it not included in selections.- But intruders shall, in the manner before described, be removed from the selections, for the term of five years from the ratification of this treaty, or until the same are conveyed to white persons.

While the treaty was pending, the Creek Chiefs were anxious that the provisions of the Intercourse Act of 1802 should be extended to them;so that the whole jurisdiction should be assumed by the United States. This was refused. The State of Alabama has extended her jurisdiction over the lands, and divided them into nine counties under the names of Benton, Talledega, Randolph, Coosa, Tallapoosa, Chambers, Russell, Macon, and Barbour. These counties are duly organized. They contain a large number of inhabitants variously estimated from 20-30,000, who are in fact intruders upon the public lands, within the express meaning of the article of the treaty just quoted. The mode of removal is also prescribed by an Act of Congress, passed March 3d, 1807, entitled 'An act to prevent settlements being made on lands, ceded to the U. States, until authorized by law.' This act provides for the interposition of the Marshal and the employment of military force, under the orders of the President, and furnishes the authority by virtue of which the proceedings in Alabama, in relation to this subject, have taken place.

The constitutionality of the act of 1807 is not controverted by the Governor. He merely disputes the correctness of the construction by the Government.

The above are, we believe, points upon which both parties are agreed.- We proceed to state, as summarily as we can, the grounds of difference.

The Secretary of War affirms that the law and the treaty impose an imperative duty upon the President to remove all trespassers. He adds, as inducements to an active performance of his duty, that

'Since the ratification of this treaty, repeated representations have been made to this Department by the public Agents, by respectable individuals and by the Indians, that gross and wanton outrages have been committed upon the latter, by persons who have intruded upon the ceded lands. It has been stated that the houses of the Indians have been forcibly taken possession of, and sometimes burnt, and the owners driven into the woods, that their fields and improvements have been wrested from them and occupied by white persons, that aggravated injuries have been committed upon the persons of the Indians, and that their horses; cattle, hogs, and other property have been forcibly taken from them. The appeals of the Chiefs to the Government to carry the treaty into effect, and to afford their people protection, have been repeated and forcible. They represent that their crops have been taken from them, and they look forward to a state of starvation, unless some decisive step is adopted in their favor. And in addition to this, the Deputy Marshal reports that there are four hundred persons selling whiskey to the Indians upon the ceded lands.'

He further more says--

'There is not the slightest wish, unnecessarily to injure or oppress the settlers upon these lands. I am well aware of the hardships and inconveniences to which frontier settlers are exposed, and every reasonable allowance should be made for their position. When there are no other obligations intervening, settlements have extended over the public lands without inconvenience to the country; and without interference of the Government. But in this case the rights of others are concerned, and the executive is called upon to fulfil the obligations of a solemn treaty.'

Governor Gayle's reply to this is, that the Secretary's information is erroneous and unjust, and that although instances may be found 'not to any considerable extent,' of such as are mentioned, 'nine tenths of them have not interfered with the Indians and in the upper counties which are most populous, not a whisper of disaffection has been uttered.' He draws a fearful picture of the distress which will be caused by the execution of the orders of the Government, including a destruction of property to an incalculable amount, and an infliction upon the State of other 'great and irreparable injuries not less calamitous than those which would mark the invasion of a public enemy.'

The parties being at issue on these points of facts the Governor proceeds to contest in the first place the construction of the laws of 1807, adopted by the Secretary; and next the validity of the treaty, as incompatible with the sovereignty of Alabama. We abstract his leading views on both topics.

He argues that it was not the intention of Congress in passing the act of 1807, to restrain persons from settling the public lands who had no object in view beyond their cultivation. That the act was designed to meet a particular case-that of the claimants under the Yazoo contract, who took possession under color of title, with the view of putting the United States to the cost of suits at law, in the case of every individual claimant-and was not meant to embrace the case of settlers, without title, who cultivate the soil with the bona fide intention of purchasing. He quotes in corroboration a series of acts running through thirty years of the General Government, in which the fact of these outstanding and hostile claims is recited, and in which special exemptions and privileges and pre-emption rights are given, to actual settlers, engage in the cultivation of the soil.- He proceeds to insist that these acts 'show beyond dispute, that during this time it was the settled policy of the Government to encourage our citizens to settle and occupy the public lands, that the class of our population has always been esteemed highly meritorious, and that the exclusive right to purchase at private sale, has been extended to them in consideration of, and as a reward for the services they have rendered by these settlements in testing the value and productiveness of the soil; and in affording facilities to purchasers to examine it.'

He adds that 'these acts have been passed with the exception of that of 1800, subsequently to 1807, and if it be a crime to cultivate the public land, the Government has suborned our citizens to its perpetration, by offering them large rewards and conferring on them valuable privileges.'

His inference is that the Federal authorities have no right to apply the act of 1807 or use armed force, except against trespassers who claim to hold by adverse title to the United States, and not against ordinary settlers on the public lands.

Of the treaty itself, he affirms that by authorizing the application of the act of 1807 to the Creek case, it 'trenches upon the admitted jurisdiction of a State, and violates the constitutional rights of a citizen, and is not law-can impose no obligation upon the people-and will be declared null and void by the legally constituted authorities.'

His argument, though of some length in the original, is compressible within a few words. The Indians within the State, are citizens of the State and subject to its jurisdiction; their property is, therefore, the property of the citizens; they have an indefeasible right to their improvements; and the treaty in another article sanctions it, by confirming their possessory title and when the locations are made, conferring it into a fee simple. The United States, then, have no interest, present or contingent, in these improvements, and have no more right to interfere than in any other case of private property.- The State tribunals are the only lawful authority, and the treaty which empowers the United States troops to interfere is an infringement upon State sovereignty, suspending the ordinary operation of its laws upon the person and property of the citizen. In another view of the subject, he contends that the enforcement of the orders of the Secretary of War will subvert the entire jurisdiction of the State over nine counties, by expelling under the general designation of 'all white persons,' all the civil officers, judges, and authorities of the State, who under the federal construction, must be 'trespassers.'

The unconditional part of the treaty, the Governor finds in that article by which the United States undertake to remove, by force, all intruders upon occupation of the Indians, 'until the country is surveyed and the selections made,'and also to remove them in the same manner 'from these selections, for the term of five years from the ratification of the treaty,' 'c.

In conclusion, the Governor calls upon the Secretary to abandon 'this project, so fatal in its tendency to civil liberty and so directly subversive of the acknowledged rights and sovereignty of the State of Alabama.'

We have thus thrown together the arguments of Governor Gayle. They are answered at length by Secretary Cass, in his letter of the 22nd ult. the leading points of which we present omitting the details and specific references to former acts of Congress.

He defends his construction to the act of 1807 by denying both the correctness of the Governor's quotations of precedents, and reasons of them as alleged for the present argument.

He cites the same laws, cited by Governor Gayle, to show that they extended not only to all persons claiming under color of title, but to 'settlements of all descriptions which would tend to obstruct the policy of the government in its disposal of the public domain.' It is further urged that the questions of claim was introduced in indulgence to persons already in possession at the time of the passage of the act, but that to subsequent intruders, it was applicable and had been applied without distinction. Several acts of Congress are cited to show that this distinction had been frequently observed for the same purposes. He collects the provisions of the act of 1807 to show that the Governor quoted it inaccurately.

'I imagine there is a misapprehension upon this subject, which a more critical examination of the acts will remove. Its object was doubtless to prevent all unauthorized settlements upon the public land, whether made without or under color of title. If the former, the intruder was liable to be removed, and was subjected to a pecuniary penalty and to imprisonment. If the latter, in addition to eviction, to a penalty and to imprisonment, he forfeited all claim to the land, and his right passed to the United States. And the provisions of the Act are varied, so as to meet these different cases.'

Reciting these provisions, he adds:-

'In each of these cases, the provisions of the law apply; ' if they do not extend to all intrusions, with whatever motive, upon the lands of the United States, words have lost their meaning, and the Government, during successive administrations, have misunderstood their own duties, and the legal consequences which follow the act of intrusion.'

To the argument of the Governor, that acts had been repeatedly passed, in favor of settlers, showing the policy of the Government to encourage those engaged in the actual cultivation of the land, the Secretary replies, that they were temporary acts of favor, all of which have expired by their own limitations; that there is still a general law in force, providing penalties; and that these temporary legislative restrictions that have completed their own object are no longer in force, cannot terminate the general law,nor narrow its construction.

In further proof of the fact that the construction which would limit the act of March 3d, 1807, to the removal of intruders from the public lands, who claim the possession they occupy, is disproved by the practice of the Government in the administration of the law, he furnished the letters of Messrs. Gallatin, Crawford, and Calhoun, and the proclamation of Mr. Madison, of which direct the removal of intruders without distinction.

The Secretary takes but brief notice of the unconstitutionality of the treaty as alleged by the Governor, in the supposed case that the Indians have a possessory title, and will have a fee simple in their improvements where the locations are made; and that consequently the United States cannot of right consider them as public lands.- He waives all discussion of the rights of the Federal Government, after the locations are made. He contents himself with saying-

'That the land is the property of the United States, at any rate, till the locations are made, seems not to be denied by you, and if it is, the operation of the Act of March 3d, 1807 upon it, cannot be disputed, upon the principles I have endeavored to maintain.'

The objection that the treaty violates the 'jurisdictive rights' of the State of Alabama because it will expel among other trespassers, the whole civil organization of courts and civil police, is met frankly by the Secretary with an acknowledgement that it will undoubtedly produce great inconvenience-while he affirms that neither the inconvenience, nor the arguments derived from it, can be permitted 'to outweigh the positive requisitions of a solemn covenant, under which the United States acquired, and by virtue of which they hold the district in question; and which formed one of the principal inducements operating upon the Indians to make the cession .'

The right of the State to an exclusive jurisdiction over the district is admitted without qualification. It is admitted, also that the officers and courts, 'c., mentioned, may be necessary in order to exercise that jurisdiction.- But the points in question are-can the State, by extending her jurisdiction over the lands, thus justify any of its citizens in taking forcible possessio of them, in the United States?- Does the power to provide these officers and tribunals include the grant of a right to take property not belonging to them, to qualify them to act?- Do persons cease to be intruders against positive law, by being appointed to any of these duties?

The following are the Secretary's views of the separate rights of the parties:-

'The ownership of the land, and the authority to legislate over it, for the ordinary purposes of life embrace powers entirely distinct in themselves, and which in this case must be exercised by different tribunals. The United States constitute a great landholder possessing under the Constitution the right to 'make all needful rules and regulations concerning their territory and other property.' They have made a regulation, by which intruders upon their lands shall be removed, under the orders of the President, by a military force. In doing this, they do no more than an ordinary individual, who repels the forcible intruder, who comes to take possession of his house ' land! Such an individual, by the act of expulsion, exercises an authority acknowledged to be in him. But he exercises no act of jurisdiction. He performs none of these function of supreme authority, included in the very term itself, and essential to the very prerogative of dictating what the law shall be. In like manner, the United States, while removing the settlers beyond the boundary of their possessions, assume no other control over him, and leave him to the ordinary operation of the State laws.

'It is no doubt convenient to have all the lands in the several States settled and cultivated. But this convenience must yield to those unalienable and imprescriptible rights of property, everywhere acknowledged among civilized nations, and no where held more sacred than in our own country;-rights which lie at the foundation of civil society, and which cannot be violated, without inflicting incurable wounds upon our institutions. I suppose it will be contended, that the General Government is less secure in its rights than an individual, and therefore by presenting the claims of the latter, I am but stating the case of the former.'

The conclusion of the Secretary is announced firmly-that the course taken by the authorities of the United States has been imposed upon them by 'the Constitution, by a treaty, and the laws,' and that 'it will not be departed from until the obligations created by these are faithfully fulfilled.' This course is thus designated:

'The troops of the United States are upon the land of the United States.- They are instructed to do this with as much moderation as possible.- Time has been given by the Marshal till the 15th of January next, for the peaceable inhabitants to remove. Even with a proper jealousy of the employment of a military force, which in other countries and in all ages has been so destructive to free institutions, I cannot see any danger to the republic, either from its action in this particular case, or from the precedents, which such a case may establish.'