Cherokee Phoenix


Published May, 3, 1834

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From the Augusta Chronicle


It will be seen by reference to the following letter, from a respected and obliging correspondent, and extracts from an article of Federal Union, that Judge Hooper, after a four days argument on the subject has determined to sustain the Bills of Injunction granted to the Indians sometime ago, after striking out certain portions of them, inconsistent with the Sovereignty and Jurisdiction of the State-at least, he has sustained them for the present, and referred them, for a final decision, to the Convention of Judges.

We are not sufficiently acquainted with the law of 1833, (which has not yet been published,) to speak positively on the point now at issue under that law; but believe it is as follows: The law, (if our view of it be correct,) provides that all lots occupied by the reservee under former treaties, shall not be held by them, but surrendered to the drawers-that the Governor shall appoint an agent to dispose of such cases, and that whenever a drawer shall make affidavit, that any lot drawn by him is in the possession of a reservee, it shall be the duty of such agent, to remove such reservee immediately, by force, if resisted, and put such drawer in possession of the lot:-thus, not only making the agent both judge and jury in most important legal cases, and offering the strongest inducements to perjury, oppression, bribery, and corruption but directly violating that clause of the 1st section, 3rd Article, of the Constitution, which says: 'The Superior Court shall have exclusive and final jurisdiction, in all criminal cases, which shall be tried in the county where the crime was committed, and in all cases respecting titles to land,'c.' If, then, our impression of the law be correct, it is palpably unconstitutional, and therefore void, and the decision of Judge Hooper is evidently correct, and must be sustained by the Convention of judges.

We would here mention, in support of the decision of Judge Hooper, that a gentleman of high standing and extensive legal attainments, informed us, very recently, that he had drawn for purchased land in the occupancy of reservees, and was so perfectly satisfied of the unconstitutionality of the law of '33, that instead of applying to the agent for possession, he had ordered suit to be commenced in the ordinary way, by writ of ejectment.

As to the right of the State to the soil, and to dispose of it thus at will, that is another question,-one of those (according to the Federal Union) which the Judge considered as settled before he came on the Bench, and was ordered to be struck out of the bills, and is therefore not involved in the decision. We, however, deny, and always have done, the right of the State to the soil, though it has very clearly and properly the right of jurisdiction. We doubt the right of the State to declare the reservees unentitled to occupancy, like the other Indians; for, tho' they took reservations in former treaties, we cannot see how that can affect their right to emigrate to other Indian lands, with the consent of the Indians themselves; which would seem to be a matter for the consideration of the Indians alone-its owners-certainly, if the Indians themselves have, as we contend, the right of soil-unless, however, as stated by the Federal Union, the reservations were taken 'with the condition annexed, that they (the reservees) should reside permanently on these reservations.' We think, tho' that the Federal Union must be mistaken in this; for it seems to us to have been the policy or desire of the State, not to confine the Indian reservees to their reservations, and refuse them the right of selling them, and emigrating, but rather to encourage their emigration, and get clear of them.

Another clause of the law of '33, if we recollect it rightly, deprives the Indians of the privilege accorded to them by the one of '32, of retaining possession of all the land they had under cultivation and fence, at that time, and confines them (each only who then had land under fence, 'c.) to one lot of 160 acres, or four 40 acre lots, or more than four small ones, to take one entire large lot, or four small ones-either comprising 160 acres only. Thus, many with large families, may be reduced to actual starvation - particularly where their lands are poor, or when they become worn out. And this, certainly, is most cruel oppression--and would be equally so, even if the State had the right of soil. We have not time or room now, to go into an examination of this most unreasonable, arbitrary, and unjust claim, founded on an absurd fiction; but will barely remark, that we consider the right of jurisdiction, as resulting necessarily and naturally from the establishment of Government, and not (as contended by others) from the right of soil.


'CASSVILLE', 4th April, 1834.

I have only time to write you, that Judge Hooper has just delivered his opinion from the Bench, and had determined to sustain the Bills of Injunction, which he granted some time ago, and which have been made the subject of discussion here for the las four days. The Judge, although he does not recognize any rights of 'sovereignty,' as belonging to the Cherokees, yet views them in the light of persons subject to our laws, and entitled to the benefit and protection of them-and particularly to the rights of occupancy, to such places as they have improved, and appropriated to their own use; and he considers that no trespass or intrusion upon these rights can be committed against the Indians, and that if any of our people consider themselves aggrieved, they must seek redress through the constituted tribunals of the country, and not by force.

I forbear to make any comments on this proceeding at present, as the whole question will be taken up to the Convention of Judges, where it is to be hoped, it will be settled satisfactorily to the whole country. I believe, however, that Judge Hooper's decision will be approved by all here, with the exceptio of a few avaricious speculators, who would do anything to deprive the Indians of their scanty possessions, regardless of the character of the State, and the plighted faith of the Government, to secure these people in the occupancy of their possessions.

'I send you, herewith, for publication, a copy of the proceedings of a very large State Rights Meeting, held in this place last Monday evening, and although many of the Resolutions refer exclusively to local matters, yet the principles they involve are important,and should be known to the whole country, for the purpose of exposing the wicked and corrupt conduct of Governor Lumpkin, and his lawful adherents in this section of the country.'

Augusta Chronicle.


From the Milledgeville Federal Union.

The Cherokee Bills.- By a treaty concluded in eighteen hundred and nineteen, the Cherokees made a cession of territory to the United States, for the use of Georgia; and, by the same treaty, reservations of land, a mile square, out of the ceded lands, were allowed to a large number of the Cherokees, with a condition annexed, that they should reside permanently on these reservations. They were treated among us as citizens, and held various civil and military offices under the state government.- Some of them drew lots of land, in the land lotteries of the state, having entered their names for draws under the oath prescribed, that they were citizens of the United States, residing within the organized limits of the state. They afterwards sold these reservations for large sums of money; and they again acquired residence in the tribe, and occupied and improved valuable bodies of land, in the territory not ceded. The last legislature, believing that these individuals had received a full equivalent for their claim to a portion of the lands held in common by the tribe, determined that they should not be permitted to retain any part of these lands, and that the grants for the lands which they occupy, should issue to the drawers. In some instances, the drawers, or persons claiming under them, had gotten possession of the lands claimed by these reservees; in others, they apprehend that they will be turned out of possession by the drawers or their vendees, with the aid of the agent of the State. To prevent this course and to restore to them the lands of which they had been dispossessed, and to quiet them in their possession, they filed the bills which have been referred to.

In these bills, they allege, that the Cherokee tribe is an independent state, having a right to make laws for its own government; and that they are the exclusive owners of all the territory on which they and their ancestors have resided, and which they have not ceded by treaty. They exhibit, in most contemptuous terms, the claim of Georgia to the sovereignty of the country; they state that their title to the whole of these lands has been guaranteed to them, in various treaties with the United States; and that the laws of Georgia for the government and disposal of this territory, are contrary to these treaties, and therefore void. And they further state, that if the act of eighteen hundred and thirty-three is valid, none of its provisions operate against them. They refuse to admit, in general terms, the jurisdiction of the state courts over them; but they acknowledge it for these particular cases; and they pray that the defendants may be enjoined from disturbing their exclusive possession, and that they may be quieted in the enjoyment of the lands which they claim.

Governor Lumpkin, with his characteristic vigilance and zeal, employed counsel to attend to these cases, not for the purpose of defending individual rights, but to resist the establishment of any principle incompatible with the sovereignty of the State,and her right to make laws for her soil.

The bills had been sanctioned by the Judge, and had been served, with the subpoenas usual in equity-cases; and to the sanction in each case was attached an order of the Judge, citing the defendants to appear before him on a given day, to show cause why injunctions should not issue agreeably to the prayer or the complainants; and commanding them in the meantime to desist from all disturbance, intrusion, or trespass on the lands particularly claimed in the bills. Agreeably to this order, the bills were called at an adjourned term of Cass Superior Court, on Monday, the 31st day of March. General demurrers were filed for the defendants on which ensued a most elaborate argument, which occupied four days.- Judge Hooper, who presided, made no final decision on the demurrers, having determined to refer the cases to the consideration of the Judges in convention. But he stated that the right of Georgia to extend her laws over the Cherokees, and to dispose of the country which they occupied, were questions settled before he went to the bench, and were not to be opened; that he could recognize no Indian claim that was not allowed by the laws of the state; and that he would retain the bills, only so far as they concerned individual rights of Cherokee Indians that were incompatible with these laws. On motion, he ordered those parts of the bills to be stricken out, which affirmed the independence of the Cherokee Nation, and their exclusive right to the soil; those parts which denied the entire sovereignty of Georgia over the Indians and the country; and those parts which maintained that the laws of Georgia, enacted for the government and disposal of the country, were contrary to treaties between the Cherokees and the United States and therefore void. As we understand the present attitude of those bills, the questions which they will present to the convention, are narrowed down to the construction of the act of 1833, ' the operation on the individual cases stated in the bills.

The counsel engaged, were for the complainants, Messrs. Barron, Harden, W. Y. Hansell, Underwood, and Samuel Rockwell; for the individual defendants, Messrs Hargrove, Baldwin, and Shackleford; and for the State, Messrs. O. H. Kenan, and J. A. Cothbert.