Cherokee phoenix. [volume], March 06, 1828, Image 2

About Cherokee phoenix. [volume] (New Echota [Ga.]) 1828-1829

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were reserved for the use of the In
dians, and the Indians themselves vverc
declared to be under the -protection
o? -ireat Britain; and the lands reser
ved were also under the • sovereignty,
protection and dominion" of that gov
ernment. Thus it is seen, that the
sovereignty of Great Britain over the
whole of Georgia was complete and
perfect; that the absolute right to the
soil was injierj that the Indians were
under prjiceUou; anil itiai iliETr posses
sion was inly permissive. Things re
in i'led in this condition until the revo
lutionary war; upon the termination of
w'v.'h, by treaty of peace between
the United States and the mother coun
try sovereignty to the full extent as
claimed, owned and exercised by
Gj eat Britain over all the lands and
Indians within the State of Georgia,
passed to and vested in the people of
this State.—We have shewn we trust
very clearly, that at the end of the re
volutionary war, Georgia possessed,
and had j right to exercise absolute
control and sovereignty over the
whole of the territory lying within her
limits; that her claim to domain and
empire was not disputed; that the ab
solute title to the soil was in her; that
the Indians were under her protection;
and that their possession was by her
pe •mission, as it had previously been
by that of Great Britain. Thus far.
We apprehend the premises that have
PS' ■ ami oaii luc'i/ute th^l
We have drawn, will not be disputed ,
for if they are wrong the very argti
m-nt that proves them to-be so mus:
defeat the title by whi h every foot of
Ir.nd in the United States is held", for
they all derive title in the same way.
It now rermins for us to shew, that
jjiy'e the revolutionary war, Geor
gi- has done no net, and entered into
no omnaet with her sister States by
which she has divested herself of any
portion of her sovereignty, affecting
tier rights now in question-. And this
proposition will be supported, if we
can shew that no such consequence
can result from the articles of confed
eration. the federal constitution, or
the articles of agreement and cession
•f 1802.
To s'lew that the articles of confed
eration have divested Georgia of no
portion of her sovereignty, it does not
x --ear to us necessary to take apy oth
<? ground than the very obvious one,
that these articles have been abroga
ted by the Federal Constitution, which
was adopted in its place and stead. —
B ; -ve contend, that even prior to the
adoption of that Constitution, they
contained no provision when properly
Construed, affecting the right in ques
tion. In tiie articles of confederation
tve find this provision: "Each State
pet ins its sovereignty freedom and in
dependence: and every power, juris
diction and right' which is not by the
'• onfederation expressly delegated to
the United States," is reserved to the
people of the States. We mny
se.irch in vain in the articles of confed
eration, for any express delegation of
the right of sovereignty or jurisdiction
by Georgia to the United States over
the territory in controversy. No such
express delegation was ever made—
t!... -eii.:e :s obv;au&; it i. re-
Served to the people of the State.—
T jse who differ with us in opinion,
may attempt to sustain themselves by
one further provision in the articles of
confederation —We allude to the pow
er vcathe United States of regula
ting "trade,"' and managing all affaijJ
wi;h the Indians, not members of
particular State, but by express pro
vision this power is in no instance to
be exercised so as to "infringe or vio
late th 3 Legislative right of any State
within its own limits.'' We are by no
means satisfied, but that the Indians
f lent within the limits of Georgia,
may fairly be considered "members"
of the State; if so, the United States
possess not the right to interfere with
t'iftm even so far as to regulate trade:
b i' whether they be members of the
S ate or not, the United States are
etnresslv prohibited from interfering
with them inanv way so as to "infringe
•r violate I Tie legislative Ttgtit of i s >e
Site within her own limits." We
think, therefore, that the articles of
confederation have not affected our
title in the least.
We next proceed to the enquirv,
whether the State's t'tleto. and rijht
o r sovereignty over the lands in con
t>-o have been affected by the
Constitution; and if affected,
to what extent? We are not disoos
to afford even the feeble aid of ovr
e' am ile for frittering away the Con
•gt't 'ion bv c :n^~vcbot\: we nref< s rto
take that iimtruftient as it is, and not to
take from, or add to its provisions.—
vv e have always believed, ana yel do,
that all powers not expressly granted
by that Constitution, or plainly implied
in, and necessary and proper to the exe
cution of the expressly granted power,
are reserved to the States; and we
earnestly insist upon this rule ot con
struction, so far as that instrument ap
plies to the subject under considera
tion.
In ilie (lilra sectiuu of tlie fouiili
article of the Constitution, we find
this provision: " Congress shall have
power to dispose of, and make all
needful rules and regulations respect
ing the territory or other property be
longing to the United States; and noth
ing in this Constitution shall be so
construed, as to prejudice any claims
of United States or of any partic
ular State." We are unable to see
what argument can be fairly drawn
from this provision, to shew that Geor
gia has surrendered up to the U States
any portion of her rights so as to affeel
the present question. This provision
nly gives to the United States the
power to control and dispose of th<
territory or property of the Genera
Government; but it vests them with
110 power whatever to corftrol or dis
pose of the territory or property oj
any State; on the contrary it is Ex
pressly stipulated, that in the exer
cise of this power, the claims of no
particular State shall be prejudiced.
It will not be contended we rppre
hend, that since the articles of agree
ment and cession of 1802, the United
States have the smallest shadow of a
title to the lands in controversy; and
if it were considered necessory, we
could easily shew that even befo-e that
time, they had no well founded title.
There is. therefore, nothing in this
part of the Constitution expressly or
impliedly divesting Georgia of the
right of sovereignty in question, and
from the very fact, that no such right
was surrendered up into the hands of
the United States, we are warranted
in asserting that the right was retained
by the State.
We understand that the power
which the Constitution confers upon
the President, by and with the advice
and consent of the Senate to make
treaties, is claimed to have an influence
-<mv)n ilie but we are
unable to discover any necessary con
nection between this provision in the
Constitution, the question under con
sideration. This part of the Constitu
tion, we have always understood, ap
plied to foreign affairs only. We are
apprised however, that the United
States have treated with various
tribes of Indians at different times
and tbat those treaties have been sub
mitted to the Senate for ratification;
but if we m ; stake not, since the adop
tion of the Constitution, Virginia, Ohi
o, New York, and Kentucky, have
exercised the right of treating with
the Indians residing within their limits;
and their right to do so hns not so far
as we know or believe, been disputed.
But upon this point we feel no sort of
solicitude, for it is suffi ient for our
purpose, that in the Constitutional pro
vision now wider review, there is no
et:press or phihiiy implied surrender on
the part of Georgia of her right of so
vereignty to the territory in question.
If there is any other provision in the
Federal Constitution affecting this
question, we are not apprised of it.—
And we consequently arrive at the
PPhclusion, that the rights and powers
Georgia in and to the lands in ques
tiori, remain precisely where they
stood immediately upon the conclu
sion of the revolutionary war, with
the exception, that Georgia has, in
common with all the other States,
given up to the General Government
a portion of her right of empi e; but
she has surrendered that right no far
ther in relation to the territory in dis
pute, than she has in relation to all the
rest of her territory. In aid of our
opinion upon the question of title, we
bes leave to refer to the decision made
by the Supreme Court of the United
States in the famous case of Fletcher
& Peck, whi'-h ftlHy establishes 'h.:
principle, that the " Legislature of
Georgia, unless restrained by its own
Constitution, possesses the power of
disposing of the unappropriated lands
within her own l'mits in such manner
as her own judgment may dictate."
And the spme case establishes the fur
ther principle, that " the Indian title
is only permissive and temporary, and
not at all inconsistent with a seisin 111
fee on the nirt of Georgia." We
need on'v add. that this decision was
mnd<i lmj s to the adoption
of the Federal Constitution.
By larticles cf agreement and
cessioi i 81.2, Georgia parted with
and ga l up all her claims and rights,
both <• V main and empire to the terri
tory tl ;c by ccc'cd to the United
State- it these articles contain 110
forma' m? express surrender of any
sneh . i to the territoiy 1 eserveti
We p-c rare, that such surrender is
clainn tl ,<»' ' s implied from the teim
1 ' J'.di: 3 there used. But
v •-'ll 1 t s properly ji»4er
stood, wcU cntti , d that this conclusion
doc not 1 cess&rily result from the
premises j This term was not intend
ed, and c; Jmiot be understood as build
ing up, an t vesting in the Indians, any
1-ind oft:' > to the lands in controversy;
nor was 1 intended tr> add to, or de
tract fronji the title v hich they alrea
dy had. lit was only used as a tern
descriptive of that title. We havi
already > s i) what th; t title was,; tha
it was a njiere possessory one: an thr.
they had fco little interest in the soil
that thei possession was not incon
sistent w 111 a seisin in fee on the par
of Georgia. But it is contended, tha
by the ui ieles of agreement and ces
sion, a co was contemplatec
<o be p >y lhe United States to tin
Indians for their relinquishment ci
this title; and therefore that it was
of such a < haracter as was entitled t(
them unk is by their consent. Wc
are of a 'liferent opinion. We have
pi t :nK' "• -11 the fragile tenure lij
which ihf , held, and do yet hold those
lands; be however slender it may
have beeii, yet some act was nccessaiy
to be dc ' by the United States o;
Goorg- -. i order to oust them of pos
session This act must necessarily
; have b of either a warlike or pa
ifi.- c 'ter. If of a warlii e cliar
| acter. ! onsideration of a pecuniary
nat ■ Id be necessary; but if of.;
pa.!:' ra'ter. then the object was
to he .11 lished by n gotiation. and
ac "lion would necessarily be
the i 'i Whenever it has been
neofts ■ y to ae< om plish a similar act
with ft Cherokees, or any other na
tion off idians, by either ofthe means
ins' r tioned, from obvious motives
of v, as well as hu lanity, the
United States have preferred resort
ing t ■ rotiation and presents. In all
sujji I'-.isjanpes, the United States
" ("■I .. no means (".mm: to resort to
sneh i|i';asures; they did so from
C.'lO'
T lis custom was well known to the
•on'ra ting parties to the articles of
agreement and cession at the time it
was entered into, and the relinquish
ment of the Indian title was intended
to be affected in the same way, and
the provision in question was simply
intended to make the United States
sustain all the expense of negotiation,
presen'g and consideration, which o
therwis® would have fallen u on Geor-*
gin. had 1 she proceeded to the accom
plishment of the same object by pa
cific means. But there is nothing in
this nrftv'sion which pre -ents the Unit
ed Statjes or Georgia from resorting
toforce\ on the contrary, this right
seems to be admitted, although the
United States would not bind them
s irrsiTTnse it. At all eve its it is
evident that if Georgia possessed this
right bef <re entering into those articles
she possesses it yet, for a surrender
of it is ao where to be found. Before
became a party to the arti
cles of agreement and cession, she
could rightfully have possessed her
self of those lands either by negotia
tion with the Indians or by force, and
she had determined in one of the two
ways to do so; but by this contract
she male it the duty of the United
States 10 sustain the expense of ob
taining for her the possession, provid
ed it cduld be done upon reasonable
terms and by negotiation: but in
it should become necessary to resort
to force, this contract with the United
States makes no provision: the conse
quence is that Georgia is left nntram
melled and at full liberty to prfsccute
her rights in that point of view, ac
cording to her own discretion, and as
th 'Pieh had been
made. Vour committee, therefore,
arrive at this concl-ision: That ante
rior to the revolutionary war, the
lands in question belonged to Great
Britain; that the r ght of soverei?nty
both as to r/oma : n and empi-e was °om
plete a,id pprfect in her; th t the
possess-on by the Indians was permis
sive; that they were under the pro
tection of that Government; that their
title was temoornrv; that, they were
mere tenants at will; and that snr.h
tenm-v mis*M have been determined
at any Djoment cither by negotiation
or force at the pleasure of Great Bri
tain- That upon the termination 01
the revolutionary war, and by the
treaty of peace, Georgia assumed all
the rights and powers in relation to
the lands and Indians ia question,
which before belonged to Great
Britain—That since that time, she
has not divested herself of any right
or power in relation to the lands now
in question, further than she has in re
lation to all the balance of'her territo-
ry, aim u!iu sire is now-aL Mill lirOfty.
and has the power and right to pos
sess herself by any means she may
choose to employ of the lands in di' -
pute, and to extend over them her au
thority and laws.
Although your committee believe
the absolute title to the lands in con
troversy rs in Georgia, and that she
may rightfully possess herself of them
when and by what means she pie: ses,
yet they would not recommend an ex
ercise of that right till all other means
fail. We are aware that the Chero
kee Indians talk extravagantly of their
devotion to the land of their fathers,
and of their attachment to their
homes; and th?t they have gone very
far toward convincing the General
Government, that negotiation with
them in view of procuring their re
linquishment of title to the Georgia
lands will be "hopeless"—\et we
do confidently believe, that they have
been induced to assume this lofty bear
ing, tjy the protection end encourage
ment which has been afforded them
by the United States; and that they
will speak a totally different language
if the General Government will change
its policy toward them, and apprise
them of the nature and extent of the
Georgia title to those lands, and what
will be the probable consequence of
their remaining refractory.
Your committee would recommend
that one other, and the last appeiil be
made to the General Government,
with a view to open a negotiation with
the Cherokee Indians upon this sub
ject—That the United States do in
struct their Commissioners to submit
this report to the said Indians; and
that if no. such negotiation is opened,
or if it is. and it proves to be unsuc
cessful, that then the next Legislature
is recommended to take into conside
ration the propriety of using the most
efficient measures for taking posses
sion of, and extending our authority
and laws over the whole of the lands
in controversy. Your Committee in
the true spirit of liberality, and for
the alone purpose of avoiding any diffi
culty or misunderstanding with either
the General Government or the Cher
okee Indians, would recommend to
the people of Georgia to accept any
treaty which mav be made between
the United States and those Indians,
securing to this State so much of the
lands in question, as may remain af
ter making reserves for a term of
years, for life, or even in fee sim-le,
to the use of particular Indians, not
to exceed in the aggregate one sixth
part of the whole territory—But if
all this will not do; if the United
States will not redeem her pledged
honor; and if the Indians will continue
to turn a deaf ear to the voice of rea
son and of friendship, we now solemn
ly warn them of the consequence.—
The lands in question belong to Geor
gia—She must and she will have
them.
Influenced by the foregoing consid
erations, your Committee beg leave
to offer the following resolutions :
Reiohed, That the United States
in failing to procure the lands in con
troversy "as early" as the same could
be done upon "peaceable" and "rea
sonable terms," have palpably violat
ed their contract with Georgia, and
are now bound at all hazards, and
without regard to terms, to procure
said lands for the use of Georgia.
Resolved, That the policy which
has been pursued by the United States
toward the Cherokee Indians, has not
been in good faith toward Georgia;
and that as all the difficulties whieh
now exist to an extinguishment of the
Indian title, have resulted alone from
the acts and policy of the United
States; it would be unjust and dishon
orable in them to take shelter behind
those difficulties.
Risolved. That all the lands appro
priated and unappropriated, which lie
within the conventional l : mits of Geor
gia, belong-to her absolutely; that the
title is in her; that the Indians are
tenants at her will, and that she may
at any time she pleases, determine
that tenancy, bv taking possession of
the premises—And tint Georgia h-s
the right to oxtend her authority and
laws over her whole territoiv, ?nd to
coerce obidifcnie to them litm rIJ de
seriptioi.s of people, be them white,
red or black, who may reside within
her limits. ,
Resolved, That Georgia entartsi«»
for the general governmeit so high a
regard, and is so solicitous to do no act
that can disturb, or tend to disturb the
public tranquility, that she will rot
attempt to enforce her lights by vio
lence, until all other means oi redicss
tail. ,
iHjiiO* ■'
trophe \\l:i< h none wot; d loofe' t.u
cerely deplore than ourselves, wo
make this solemn—this finr.l—this last
appeal to -,he President ofthe United '
States, tint he take such steps as are
usual, and as he may deem expedient
and proper for the purpose of, ai-.d
preparatoty to the holding of a treaty
with the Cherokee Indians, the ob
ject of which shall be, the extinguish
ment of title to all or any part
of the lar, s now in their possession,
within tholimits of Georgia. f
Resolved That if such treaty be
held, the President be respectfully re->
quested toinstruct the commissioners
to lay a |opy of this report before
the in convention, with such
comments is mov be considered just
and proper. (lie nature and extent
of )'. e G ' ij 'ia title to the lands ia
C(?i ;ovcrr, and the probable conse*
qwi; s will result from a con
tinned rcftfeal upon the part of thr
Indians tu port i • h those lands. iu'iu '"***'
that the ten ;r )oners be also instruc
ted t graft ' '-iicy find it absolutely
netrr- y •3 of land in favot <tf
iidiv '1 of the %
najjien one-sixth part of
the ,r,iy Acquired, the sr me
to i i ftf future purchase by
the ( (-■ the use of Georgia.
/;<■: d '.in excellency tho
.Gov !<•> tsted to forward
a cop-- oi ' '(>:( .ioirigßepo' t & Reso
lution;, to Prt sident of the United
States, an<! cne to our Senators cr4 I
Represent:jrives in Congress, with t.
request that tbey use their best exer
tions to obtain the objects therein ex- 4
pressed.
INDIAN COUNCIL.
Mr. Eer.ii, when he first arrived ia
Pennsylvania, in the year 1683, and
following observations, in a letter he ;
then wrote to his friends in England.
" Every kii g has his council, and that
consists of ill the old and wise me*
of his nalirv which perhaps are fw«
hundred p, pie. Nothing of moment
is undertaken, be it war. peace, sell
ing of land, or traffic, without advising
ing with them. 'Tis admirable t»
consider how powerful the chiefs are,
and yet how they move by the breath
of the people. I havejiad occasica
to be in council with them upon trea- ,
ties for land, and to adjust the terms
of trade. Their order is thus; the
king sits in the middle of an half moon,
and hath his council, the old and the
wise on each hand. Behind them, at
a little distance, sit the young fry, in
the same figure. Having consulted
and resolved their business the 1
ordered vof them to speak' foirTe
He canio to me, and in the name of
his king, saluted me. Then took me
by the hand, and told me that he was .>
ordered by his king to speak to me;
and that n„w it was not he, but the
king who spoke, because what he
should say was the king's mind. Du
ring the time this person was speak
ing, not a man of them was observed
to whisper or smile. The old were
grave —the young reverend in their
deportment* They spoke little, but
fervently and with elegance. He
will deserve the name of ioise, who i
out-wits them in any treaty about a
thing they understand. At every
sentence t! t shouf, and say amen, in
their
Sir Hi tiift, in his history of ? . Jer»
sey. 11 fir s this general ttatraenC
"Tli e even to *"'Tn< s®,
upon aay (<. i imotf. end mo upc.v
serious <v *' ;cbsc; "a.- ~
in rouaTOfei. i. «d re. c ;v«-i«'al to (he a
sed— if i ii Pgr cool and <*elilera'«
—lunver ' ;>s e to speak, hut writ,
for r net y, that the
sfa f><" ' them, had finished all
he dto - They seemed to hi'd
F roi'Tir . , 'ifyin conteai it, be
cause th• found such as came rmong
them, apt to interrupt each other,
and frennen'ly speak altogether —.
Their hehnviour in public councils
was strictly decent and instructive.
Eve r v one in his turn, was hr?rd nc»
eordin? to ra n V of vcts ov wisdom, t
or servi.ss t« his country. Not «