Cherokee Phoenix


Published February, 8, 1834

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From the Knoxville Republican.


In this week's paper, we have inserted according to promise, the Bill 'to extend the laws and jurisdiction of this State to her Southern Limits;' which bill, as we informed our readers in our last, passed both houses of the Legislature, and is now one of the laws of this land; provided the State government be permitted to hold for naught the treaties of the United States.- We refer the reader to the first page, for the abominable law of which we speak, and request him to read it attentively.

The first part of the Act, which extend the laws of Tennessee, 'over that tract of country now in the occupancy of the Cherokee Indians,' provides 'that the Courts of this State should have cognizance of all crimes and misdemeanors committed, and all contracts made, and of all persons residing within the limits of the said territory, and shall hear and determine the same, in such manner and upon terms as the laws and usages of said State now do, or may hereafter prescribe.' Next follows the division of the territory, which is parcelled out to the counties of Marion, Hamilton, Rhea, M'Minn and Monroe, lying contiguous to that tract of country. Then comes a string of provisos, seven or eight in number, which create a confusion almost as great as that caused by the confounding of languages, at the building of the tower of Babel.

The first proviso is to prevent any construction of the act which would require the native Cherokees, residing in that tract of country at the passage of the act, to pay tax, to work on the roads, or to perform militia duty.

The second proviso, secures and protects them in the free and unmolested enjoyments of their improvements and personal property,according to their own customs and usages, and authorizes them to enforce their rights touching the same, in the Courts of Tennessee.

The third proviso is to prevent any interference with their marriage customs.

The fourth proviso subjects such of the Cherokees as have heretofore, or may hereafter have, the rights of citizenship extended to them, to all the duties and public dues, of other citizens.

The fifth proviso prohibits the Courts of Tennessee from exercising jurisdiction of any criminal offence, except murder, rape, and larceny, committed by the native Cherokees, in that territory. 'And' saith the proviso,'the usages and customs of said Cherokee Indians in all other respects are hereby allowed them within the territory over which by this act, the jurisdiction of this state is extended,until such time as it may be deemed necessary and proper further to abridge or abrogate them: saving always from the BENEFITS and privileges of this exception, such of the native Cherokee Indians as have had or may have the rights of citizenship extended to them by any law of the State of Tennessee.'

The sixth clause provides against the whites settling in the Cherokee country, and nothing in the act 'shall be construed to invalidate any law or treaty of the United States, made in pursuance of the Constitution thereof.'

The last clause provides that nothing in the act is to be construed to authorize any entry, appropriation or occupancy of any of the lands 'now in possession of the Cherokees, or to extend our laws for the entry of vacant and unappropriated lands over any part of said country.'

That this act is unconstitutional, we feel well satisfied, and as our Legislature have incorporated, among its provisions, its own death warrant by providing that anything contained in the act, 'shall not be construed to invalidate any law or treaty of the United States, made in pursuance of the Constitution thereof,' we hope our Courts will not hesitate to pronounce it so.- When this provision was offered as an amendment to the bill, in the House of Representatives, the friends of the bill were divided-some voting for, and others against, the amendment. How man acting in the capacity of Legislators, could reconcile it to their consciences to vote for the other provisions of the bill, and against this amendment, was to us a mystery. Did it not show conclusively, that they were supporting a bill which they believed to be in violation of the Constitution, laws and treaties of the United States? But, let that pass.

If this law be permitted to take effect, it will deprive the Cherokees of some of the most important rights and privileges, which a nation can enjoy;-it will, in that event, deprive them of a right which has been given by the God of nature,and guaranteed to them by the treaties existing between them and the government of the United States-the right to govern themselves. It may be said that the treaties are silent upon that subject, and therefore the United States have not guaranteed to them the rights of self government. But to this we answer-they were in the enjoyment of that right before they ceded to the Whites, any of their lands, rights or privileges, and as no treaty can be found, in which they relinquish that important right, undoubtedly they must still retain it. A nation cannot be deprived of such a right by mere implication. The United States have guaranteed to the Cherokees the occupancy of their lands, so long as they may choose, of their own free will, to live upon them, and the government is pledged to protect them from the invasion of the Whites, and in the enjoyment of their property:- and can it be supposed, for a moment, that, in securing to them the enjoyment of these privileges, the government did not guarantee to them the more important right, to continue in the enjoyment of their own laws, customs and usages? Then, we repeat, this right is guaranteed to them, and no State can wrest it from them, but in violation of the supreme law of the land.

Some justify this measure, upon the ground that the treaties mad with the Indians, are unconstitutional. If it is true that the treaties are unconstitutional, then let them be rescinded if it must be so-the Cherokees, we are sure could not be the losers at that game, if it were fairly played. In that event, the Indians would be restored to the possession of the lands which they ceded by the treaties and the consideration which the Whites paid for them, would have to be returned. But in the name of high Heaven, let not men who have pretensions to morality insist that the treaties are unconstitutional, and seize upon that, as a pretext for robbing the defenseless Indians of the remainder of their lands and privileges! The objection cannot come with a good grace from the Whites. They cannot allege that they were overreached by diplomatists-but on the other hand, it is true that they, by intelligence, ingenuity and physical force, had the advantage of the Indians, when these treaties were made; and if anything was done in violation of the Constitution of the United States, it was their own fault-not that of the Indians. And it is a maxim in law that a party shall not take advantage of his own wrong.

But what provision let us ask, has been made for the Indians to maintain their rights in our Courts? Have they an equal chance with the Whites, at this game of hazard and address, when they are not allowed their oath against a white man? Can they maintain their rights with their hands thus tied, against the black villainy of those who may and will go among them either separately or in small companies, and rob them of their property and abuse their persons in defiance of all laws? Away with such mockery!- it is a disgrace to the nation. But that is not all,-this mockery of justice is not brought to their own doors-they must be dragged from their own country and from their own people, to the country of strangers, ' these strangers not their friends-to claim their rights in a language they do not understand.

And are these the tender mercies that are to be meted out to the defenseless Cherokees, who fought for us in the late war, by the now powerful nation which once groaned under the yoke of Britain, and is bloated, almost to bursting, with pride, because they succeeded in throwing off the fetters that bound them? Art they, who suffered so much from oppression themselves to become callous to the sufferings of others? 'Forbid it heaven!'- let not the world witness the perpetration of crimes so diabolical, by the chivalrous sons of Tennessee!

Were the Cherokees equally powerful with the Whites, as a nation, that fact would be some palliation of the course of oppression which is commenced in this act of our Legislature.- But they are weak and we are strong-and it is this circumstance that adds the blackest disgrace to our blackest crime. And shall it be recorded in history that this hell-born scheme of oppression was persisted in by a people professing to do justice unto all men and all nations, and a people, too, professing reverence for the true and living God?