Cherokee Phoenix


Published May, 10, 1834

Page 2 Column 4c


To the Honorable JOHN W. HOOPER, Judge of the Superior Courts for the Cherokee Circuit of said State.

Humbly complaining, sheweth unto your Honor, your Orators,___________ That they are natives of the Cherokee Nation of Indians, east of the river Mississippi, and reside in the said nation, having all the privileges and rights of individual citizens of the said nation; that from time immemorial, the Cherokee Nation have composed an independent State; and in this character they have been repeatedly recognized by the United States, in the various treaties subsisting between their nation and the United States.

That long before the approach of the white men of Europe to the Western Continent, the Cherokee Nation, and the ancestors of your orators who composed a part thereof, were the occupants and owners of the territory on which they then resided, and where your orators now reside, deriving their title from the Great Spirit, who is the common father of the human family, and to whom the earth belongs; that on this territory they and their ancestors have ever been occupants, and until lately the exclusive occupants, and as they charge are now of right the exclusive owners, and should of right be governed by their own laws, usages and customs, and none other; but in as much as the courts of Georgia assume jurisdiction over the Indians, your orators now by protestation neither admitting nor denying that jurisdiction as a general abstract question, but admitting it for all the purposes of this bill, charging that if they are either rightfully or otherwise subjected to such jurisdiction they have a right to its protection so long as the same continues to be exercised over their country and them.- Your orators have been informed and believe, that in the year 1732, the then King of Great Britain, under the name and style of George II, King of Great Britain and Ireland, by a charter to a company of his own subjects there residing, affected to grant to them all the country on this continent lying between the Savannah and Altamaha Rivers; that this country was at the time inhabited by several sovereign and independent nations of Indians, amongst other by the Cherokee Nation, who were the rightful owners thereof, and that the monarch who affected to grant it had no title to it whatever. There complainants are informed and believe, that the only title to which he pretended was derived from the circumstance that a ship, manned by his subjects, had about two centuries and a half before, sailed along the coast of the Western hemisphere, from the fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of the coast without ever landing upon any part of it.

This they are informed and believe has been called a title of first discovery, which is not true even in point of fact, as against the Cherokee Nation and other Indians, for they had discovered and occupied it long before. That whatever may be the theory of this title by discovery, as among the European sovereigns themselves, these complainants are informed and believe it was never alleged by the King of Great Britain or any of his grantees, that the charter give to them any right to disturb the Indian occupants. That various treaties have been made between the British Colony in Georgia, between the State of Georgia, before her confederation with the other States, afterwards between the confederated States, and finally between the United States, under the present Constitution, and the Cherokee Nation; in all of which the rights of the Indians to the occupancy of the country, and the lands on which they reside, have been recognized.- These complainants pray leave to refer to the following treaties between the United States and the Cherokee Nation, as part of this their bill of complaint, as published with the laws of the United States and forming according to the Constitution of the United States a part of the supreme law of the land, to wit: the treaty concluded at Hopewell, on the 28th of November, 1785, between the commissioners of the United States, and the head men and warriors of all the Cherokees; the treaty concluded on the banks of the Holston, on the 22d day of July, 1794, between the President of the United States, by his duly authorized commissioner, William Blount, and the Chiefs and warriors of the Cherokee Nation of Indians, together with the additional article thereto made at Philadelphia, on the 17th of February, 1792; the treaty at Philadelphia on the 26th of June, 1794; the Treaty of Tellico, made on the 2d of October, 1798, between the United States and the Cherokee Nation; the treaty between the same parties at Tellico, on the 25th October, 1805; the treaty between the same parties at Tellico, on the 24th of October, 1804; the treaty between the same parties at the same place, on the 27th October, 1805; and the treaty between the same parties made at the City of Washington, on the 7th day of January, 1806, together with the proclamation of that Convention by the President of the United States, of the 11th of September, 1807; the treaty of Washington on the 22d of March, 1816; the treaty at the Chickasaw Council House, made on the 14th September, 1816; the treaty at the Cherokee agency, on the 8th of July 1817; the treaty at the City of Washington on the 27th of February, 1819. All which treaties and conventions were duly ratified and confirmed by the Senate of the United States, and become thenceforth and still are, a part of the supreme law of the land.

That by these treaties, the right of the Cherokees to the occupancy of their lands within their prescribed boundaries, is so clearly recognized that these complainants cannot conceive a doubt can exist.

These complainants have understood that some have indulged in speculative objections to their title to the whole lands of the entire country thus claimed by the Cherokee Nation, on the ground that they are mere savages, roaming over the surface of the earth in search of game. Even if this hypothesis were true, how such an objection could stand with those solemn treaties by which their boundaries have been designated, and their lands within those boundaries guaranteed to them, they do not comprehend; nor have they yet been informed how it has been ascertained that this earth was intended only for the purposes of agriculture, and that no title could be acquired to any portion of it in any other manner than by digging into its bowels; nor how digging and plowing into one part of it can give a title to hundreds and thousands of miles at a distance from that part so dug into or plowed.- They are still more confounded in attempting to reconcile this theory of a title derivable only from the cultivation of detached portions of a country, with the alleged title by discovery, arising simply from sailing along the coast of several miles distance from the shore. They are equally perplexed in reconciling this theory, with the title which the United States themselves set up, to the untouched millions of acres which lie between their settlements and the Pacific Ocean, which their people have never even chased their game, nor seen them from the distant mountain tops.

But whatever foundation there may be for this theory, these complainants charge that they are neither savages nor hunters, but agriculturalists; and they charge further, that they are occupants of a certain portion of land which they and their ancestors have actually enclosed and improved, and that no politician or jurist have ever heretofore doubted the right of the native Indians to the undisturbed possession of their fields and houses; but that all the decisions of the courts both of the State of Georgia and the United States, have at least agreed, and been uniform in so holding; and that no State could, by any constitutional enactment, deprive them of such right; but that the same is secured to them by their several treaties, and by the laws of the United States; to which they pray leave to refer as part of this their bill of complaint.

These complainants show unto your Honor, that notwithstanding the said treaties and laws of Congress, and notwithstanding the uniform decision of all the tribunals of the country,as aforesaid, and notwithstanding these complaints, undoubted right of peaceable, and exclusive possession and right of occupancy to their said farms and houses, one___________ claiming under one_________ have entered upon and taken possession of a piece of land in said county, known and distinguished as lot No. 23, in the 14th District, of the 3rd Section, of formerly Cherokee, now Murray County, and have committed, and are daily committing trespass thereon; under some pretended authority, pretended to be derived from and by virtue of a statute of the State of Georgia, one of the United States of America, passed at a session of her Legislature, held in December in the year 1833, entitled 'An act more effectually to provide for the government and protection of the Cherokee Indians, residing within the limits of Georgia, and to prescribe the bounds of their occupant claims, and also to authorize grants to issue for lots drawn on the late Land and Gold Lotteries, in certain cases, and to provide for the appointment of an agent to carry certain parts thereof into execution.'

These complainants aver, that so far as this statute of Georgia attempts to give right to dispossess, or interfere with the possession of these complainants, and all other statutes of said State which attempt such object, they are null and void, because they are repugnant to the aforesaid treaties, which are yet subsisting and in full force between the United States and the Cherokee Nation; and because they are also repugnant to the Constitution of the United States, by which, among other things, it is provided that no State shall pass any law impairing the obligation of contracts; and these complainants aver that all the treaties aforesaid, are contracts of the highest character, and of the most solemn obligation. And it is further provided in the Constitution aforesaid, that all the treaties made, or to be made under the authority of the United States, compose a part of the supreme law of the land,and the judges in every State shall be bound thereby, anything in the Constitution or Laws of any State, to the contrary notwithstanding. And these complainants further aver, that the statute as aforesaid of the State of Georgia, is contrary to the Constitution of said State, which give exclusive and final jurisdiction to the Superior Courts of said State, in all cases concerning the titles of land, and also that the trial by jury shall remain inviolate.

These complainants bring before your Honor, a question of property, ' of personal as well as national rights, for the ascertainment and decision of this honorable Court, dependant on the construction of these treaties, and the Constitution of the United States, which have been declared to be the supreme law of the land, as well as on the Constitution of Georgia-they allege that the above recited statute of Georgia has been passed in violation of these treaties and constitutions,and are utterly repugnant to all the judicial decisions and opinions heretofore expressed and entertained; and also contrary to every principle of equity and good faith, and having no other object in view but to expel these complainants from their houses and farms; and this was distinctly avowed in the House of Representatives by one of the members of the Georgia Legislature, who declared it was necessary to enact rigorous laws for the purpose of compelling the Indians to leave the country; and this declaration was made by a member of the legislature, who had been, as these defendants are advised and believe, heard to say that the laws passed at the former sessions of the legislature of said State, and which extended the jurisdiction into the Indian country were unconstitutional ' void, or words to that import and who had advised the Cherokees to oppose them by an appeal to the courts of the United States, and with every assurance to them that they were unconstitutional and ought to be set aside, and which could not be carried into effect; consistently with the Constitution of the United States. This fact constrains these complainants to believe that in the enactments of this oppressive act of the last legislature every principle of constitutional propriety was set at nought and disregarded as well as every principle of justice, equity,and humanity, which commands to do to others as we would have them do to us; and a law enacted in open violation thereof, by which the property and rights of these complainants have been wrongfully invaded, and are still threatened with irremediable invasion and final destruction.

And these complainants further charge that should the said law be considered as having full force and effect, that the premises occupied by these complainants are not such as the said law can operate upon because they say, your orators,_________ and _______ are natives, and entitled to all the privileges of natives of the Cherokee Nation; amongst which privileges the right to occupancy of lands in the Cherokee Nation is one which has not been taken from them, even by the unjust, oppressive, and unconstitutional statute of Georgia, above cited, allowing all its provisions to have full force and effect; which, however, they by no means admit, and that their right of occupancy extends to and includes the premises above described, jointly, the said ___________ and ___________ who are joint complainants. And these complainants well hoped that the said _______ would have desisted from all further trespass and intrusion upon the rightful occupancy of these complainants in the premises, as in justice and equity they ought to have done.

But now so it is, may it please you Honor, the said _______ combining and confederating with divers other persons, at present unknown to these complainants, but whose names when discovered, they pray may be herein inserted, with proper and apt words to charge them, and they made parties to the bill, how to defraud these complainants in this behalf, have not desisted, nor will, unless restrained by your Honor. In tender consideration, whereof, and inasmuch as these complainants are wholly remediless in the premises, except by the interference of this honorable Court.

To the end, therefore, that the said confederates may, upon their several ' respective corporal oaths, full, true, and perfect answers make, to all and singular the premises, as fully as if the same were again repeated, and they thereto particularly interrogated; and that the said confederates may be enjoined from any manner of trespass in the premises, and from all disturbance of the peaceful, exclusive, and uninterrupted enjoyment thereof by these complainants; and that these complainants may be quieted in the peaceable enjoyment thereof, and that they may have such other and further relief as this honorable court may deem consistent with equity and good conscience, and as the nature of their cases may require.- May it please your Honor to grant to our complainants the State's most gracious writs of Subpoena and Injunction, commanding and enjoining the said ________ under certain penalties to be therein inserted, and at a day to be therein named, to appear before our Honor, to answer to these complainants, as in duty bound will ever pray, 'c.

WILLIAM H. UNDERWOOD. ' EDWARD HARDEN, Solicitors pro Complainants.

GEORGIA- Murray County;

Personally came before me _______ who after being sworn, saith that the matters and things contained in the foregoing bill, so far as they concern his own acts, or come within his own knowledge, are just and true, and so far as they concern the acts or come within the knowledge of others, he believes them to be true.

Sworn to and subscribed before me this____ day of___1834.