Cherokee phoenix, and Indians' advocate. [volume], June 10, 1829, Image 1

About Cherokee phoenix, and Indians' advocate. [volume] (New Echota [Ga.]) 1829-1834

Image provided by: Library of Congress, Washington, DC

                
CHEMOK.EE PIMEWIX, AID IWSMAWS 5 TM.
PRINTED UNDER THE PATRONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOIVD TO THE CAUSE OF INpIANS.J—E. EGCDIKCTT, EIJiTCXli
VOL,. II.
PRINTED WEEKLY BT
JOHN F. WHEELER,
At $2 50 if paid in advance, $3 in six
months, or $3 50 if paid at the end of the
year.
To subscribers who can read only thr
tlherokee language the price will be $2,00
in advance, or $2,50 to be paid within the
year,
Every subscription will be considered as
fcontinued unnless subscribers give nnticcto
ihe contrary before the commencement of a
new year,and all arearageS paid.
Any person procuring six subscribers,
and becoming responsible for the payment,
shall receive a seventh gratis.
Advertisements will be inserted at seven
ty-five cents per square for the first inser
tion, and thirty-seven and a half cents foi
each continuance, longer ones in propor
tion.
in* A11 letters addressed to the Editor.
IMR DOJAatxftJl.
AGENTS FOR 1 HE CHEROKEE
PHCENIX.
mi r 11 .. 1 . „.. «
PHCENIX.
The following persons are authorized to
receive subscriptions and payments for the
Cherokee Pl/nix,
Messrs. Peirce &. Williams, No. 20
Market St. Boston, Mass.
George 'M. Tracy, Agent ofthe A. B.
C. F. M. New York.
*flev. A. D. Eddy, Canandaigua, N. Y.
Thomas Hastings, Utica, N. Y.
Pollard St Converse., Richmond, Va.
Rev. Jamf.s Campbelh, Beaufort, S. C
William Moultrie Re id, Charleston,
s. c.
Col George Smith, S!atesville, W. T
Wieliam M. Com 3s, Nashville Ten.
Rev. Bennet Robf.ut> —Powal Mo.
Mr. Thos. R. Gold, (an itinerant Gen
tleman.)
Jekemiah Austil, Mobil' Ala.
Rev. Cvkus Ksngsbuey, Mayhew, Choc
taw Nation.
Cant. William Robertson, Augusta,
Georgia. ,
Col. James Turk Bellfcnte. Ala.
INDIANS.
HON. H. L. WHITE'S LETTER.
[Concluded from our last.]
These considerations account for
the language used in the 2d article of
the treaty of Holston, and enable us
pretty clearly to discover the import
of the words in the 6 th article—sole
and exclusive power to regu ate their
trade. By the 2d article, the Cher
okees had deprived themselves of all
power to make any treaty with s>,Viy foi -
eign sovereign, or State, or individ
ual. This power, thus given away
4n the 2d article, it was essential
should be Vested in some sovereign,
who ( fpould feel disposed to exercise
it .for their benefit, whenever the
proper tiiue far its exercise should
arrive; hence the language used in
the 6th article. The power parted
with in the 2d is vested by the 6th
in the United States. In the case of
the States, the language of the Con
stitution is, "Congress shall have
power to regulate commerce with
foreign nations, and among the several
Slates, and with the Indian tribes."
In the case of the Indians, the lan
guage in the treaty is "That thejUnit
ed States shall have the sole and ex
clusive right to regulate their trade."
In each case, as I think, the same
idea is communicated; in each a
power is given to regulate their ex
ternal trade; and in neither is a pow
er given to make municipal laws for
them, They may regulate the trade
or commerce which other States or
nations carry on with. th.ern\. but as to
the internal trade, to be carried on
within their own limits, it is as much
the subject of their own jnunicipal
laws, as if the Cherokees still re-
NEW ECU OTA, WEDNESDAY JUNE 10, 1829.
I nained independent, to all intents and
j purposes. If it be true, as some
j suppose, that, in virtue of this 6th ar
i tide in the treaty, Congress has pow
j er to rtiake municipal laws for thein;
1 ind to regulate all their internal
trade, within the body and heart o!
the Cherokee nation, where is the
necessity for an express stipulation
for the road from Washington to
Vlero district, for the Kentucky road
for the road to Georgia, for that to
Tombeckbe, and for the post road to
New Orleans? Where was the ne
cessity for the stipulation for the free
navigation of that part of the Tennes
see river which flows through the na
tibn? All these stipulations, made at
different times and in several trea
tier, were entirely useless. If it be
true that the United States, in, vir
tue of this treaty stipulation, have not
only the power to regulate the trade
within the nation, but also all their
(the Indians) affairs, where was the
necessity of those stipulations which
provide that white persons who may
go within the nation, and there com
mit ct-imes, may be brought out and
punishtid in the same manner as if
they hail committed the like crimes
upon or against white persons within
the limits of the district where they
resided. The object of this provision
is important, and cannot be misunder
stood. The Cherokecs were to be
considered as a nation; the bounds of
their territory were ascertained;
within those bounds they would have
all .the rights of sovereignty not sur
rendered: if a white man went with
in their limits and committed a crime
or trespass, he would have been a- <
menable io the tribunals of the coun
try where the offence was committed,
and the nature of his crime, as welf
as the measure of his punishment,
w;uld have been ascertained by the
municipal laws of the country in
which he ■had transgressed. Know
ing this, and being unwilling, on the
one hand, that a guilty citizen should
escape with impunity, and determin
ed, on the other, that the guilt or in
nocence of an American citzen should
not be ascertained by an Indian tribu
nal, nor should the nature of his crime
or measure of his punishment be as
certained by an Indian Legislature,
this provision was inserted,. But if
an opinion different from mine be en
tertained; if it be true that the Unit
ed States are clothed with the power
to regulate internal trade, and all
other affairs, and the Indians have no
power to act 0:1 these subjects; U'.Ssc |
provisions were unnecessary.
The Congress had nothing to do
but pass an act, and the same object
would be attained. The United
States, even as early as 1791, looked
forward to the time when the Chero
kees would become enlightened, when
they would become civilized, when
they would be capable of self-govern
ment, when they would be owners of
property real and personal, which
each individual within the nation, who
might be the owner of it, would be
desirious of having secured to his ex
clusive use. IIo w were these objects
to be attained? The stipulations of
the treaty of that year answer the
question —by giving them a perma
nent interest in the country; by leav
ing them in the possession of all the
powers of other independent conmimuni
ties, consistent with the interest of
the United States. Without an in
ternal government of their own, they
must remain savages. A government
cannot be administered without mo
ney; without the power to impose a
tax, money cannot be collected. In
selecting objects or subjects of taxa
tion. they have the sanTe range as any
one of the States. A tax upon mer
chants, upon pedlars, and upon haw
kers, is common in many, if not in all
the States. If the Cherokees have
the power to impose a tax upon any
thing within their limits, there is noth
ing in any treaty or statute which
prevents them from imposing » tax
-mmnWHliTTTTT 1 HBT im.fg— I II I I ■
upon an Indian or Indian countryman
settled and residing in the nation, an.
carrying 011 tlie business of ti'ade am
merchandise, without any license from
the United* Stanes; and if they ar»
prohibited from the exercise of this
power, it must be upon some princi
ple which would prohibit any one of
the States likewise.
There now arc, and have been for
years, resident merchants in the na
tion, using capital sufficient for re
spectable retail stores almost an)
where in the United States. The)
neither have, nor is there any law
requiring that they should have, a
license to enable them to vend their
goods. There.arc many Indians and
Indian countrymen with good farms,
well stocked. Cannot these be tax
ed? If they can, what is there to ex
empt the itinerant merchant, the haw
ker or pedlar, within the uation, with
a license from the' United States?
Was it the intention of the United
States to give such person a privilege
over the resident Indian merchant? —
There is not one word in the treaty to
countenance such an idea. Under the
parental care of the Federal Govern
ment, the Cherokees have been 111
a good degree reclaimed from their
savage state: under their patronage
they have become enlightened; they
have acquired a taste for property ot
their own, from the use of which they
can exclude all others. They have
acquired the property itself. There
must be laws to protect it, as well as
to protect those who own it. By
what community ought these laws to
be enacted? Laws there have al
ways been, and laws there must con
tinue to be, emanating from some
power capable of enacting them.
Where is that power? It must be in
Congress, or in the Cherokees. Con
gress has never exercised it, the
Cherokees always have. And if 1
have bfien correctly informed, one cl
the Presidents of the United States,
to aid them, digested a code ol w. it
ten laws, which he supposed suited to
their society, sent it to them with his
recommendation that they would a
dopt them. The nation gave them a
candid examination,and did adopt such
of them as they thought adapted to
their situation. Afterwards, if lam
not mistaken, in a communication to
Congress, it was mentioned with
approbation that the Indians were
progressing in the good work of civi
lization, and assimilating their gov
ernment to thnt of the United States?
I never heitrd that their power was
doubted. That this power had been
surrendered to the United States by
the words that "Congress should have
the sole and exclusive right to regulate
their trade," or by the words "man
aging all their affairs in such manner
as they think proper," if they ought
to be considered in force. I cannot
suppose it possible that in making
these treaties the United States ci
ther wished of intended to take from
the Indians the power of making mu
nicipal laws. II they did, it must
have been with a view to vest the
same powers in Congress. It would
have been cruel to divest the Indians
of the power,without at the same time
intending to use it for their benefit.
This power never has been used, that
I know of, perhaps could not be used,
by Congress, to advantage. Of all
subjects that Congress could be called
to act upon, this would be the most
difficult—to make a code of laws by
which the Cherokee nation should
manage all their internal affairs. I
cannot but believe that this is pow
er most fit to be exercised by the
Cherokees themselves, and that such
was the opinion of those who framed
the treaties; and, therefore, they
were left in possession of it. At the
time this treaty was framnd, and
this language used, the Cherokees
were in possession of a district of
country, spread into several States;
they lived in many detached villages,
separated from each other, some of
»r ■■nTTiirrM»'tfft»a>drMai» , vTOaBaagffmfc-*-iflwi'\'aK^agic'cirjo£ja.'.-ua
1 them by many miles, each village hav
ing its ovvn peculiar customs. This
:ountry is solem ily guarantied by this
i rejity to the Cherokee nation. Mu
liclpal. laws to regulate its trade and
uid all its affairs within those limits,
.ire to be made from time to time,
anil ttiose laws frequently to be cliang
■d, so as to suit the changing con
! iition of those inhabitants, and there
by promote their happiness and i-om
i'ort. Is it probable that the Execu
tive of the United States, or his ne
gotiator, would'desire this power tak
en from the Indians and vested in
Congress? Would the Indians be
willing to transfer it? Were Con
gress to be perpetually in session,
iVithout any other business to engage
their attention,, it is not probable they
could discharge Such a trust to their
own satisfaction, or to the satisfac
tion of an Indian community.
(ieneral Washington knew better
than to desire the transfer of such a
power to tl>e United States; his ne
gotiator, acting litider his special in
structions, knew better; we ought
not therefore to give to (he tVcaties
such a construction r,s would vest
such a power in Congress, if language
used can be fairly satisfied without
doing so.v It seems to me this can be
done. "Congress shall have the sole
and exclusive power to regulate their
trade.'''' By the words sr,le and exclu
sive, we exclude all other sovereigns
from acting upon the subject. Reg
ulating "their trade:" these words fix
the subject' to be regulated; that is,
their trade: the trade of the Indian
nation as n nation; not the trade be
tween A and 13 within the nation. In
other words, Congress alone is to
have the power of regulating the
trade of the Indian witti all oilier
sovereigns. Each State was once
sovereign; each had the power to
regulate its commerce with other
sbvereigns. By the Constitution of
the United States, Congress is vest
ed with the power to regulate com
merce with foreign nations, and a
mong the Staiesf; and with the Indian
tribes. What power have the'Statcs
lost? The power to regulate com
merce with foreign nations, and among
each other; but neither has lost the
power to regulate transactions be
tween A and B within its own limits.
The Indian nation must some time
have a government to regulate the in
ternal concerns of the nation; indeed
they have always had one: as they be
come enlightened and civilized, this
government, like that of other nations,
will require money to support it.
There is nfl stipulation in any treaty
that Coiigress shall defray this ex
pense out of the common fund. Is
Congress by the treaties to impose
a tax upon the Indians? The Amer
ican Government never has advocat
ed the doctrine that taxes can be im
posed by a body, where the people
taxed ar£ unrepresented. The Con
stitution of the United States prohibits
an enumeration of the Indians for the
purposes of representation; they are
therefore unrepresented in Congress.
If we suppose the treaty of 1785 in
force, and add to the words ''regu
late (heir t rade""and all their affairs,"
it will not aid the other side of the
question. Immediately it will be
asked, with whom? I answer, with
foreign nations. As a nation, they
hove much to transact with the
United States, or with other nations,
which does not relate to the regula
tion of trade, the fixing boundaries,
treating with other Indians, &c.
The affairs then which they have to
transact with oilier powers, the Unit
ed States have the power to manage
for them; but not to manage affairs
which relate to the relative duties of
individual Indians to each otly.r, with
in their own territory, nor to the du
ties which individuals of the Indian
community owe to the Cherokee na
tion. So soon as 1 lie Indian natron had
existence as a community, there was
a power sctnc where ic make mimic:-
pa! regulations for the government of
that community, and among 'iu.se
powers one to levy a id collect taxt s)
lh.it power still exists soma where; I
think it is not one of those powers
transferred to the United Slates; it
must therefore remain with the Che
rokee nation. I will now inquire
whether there is any'thing'in (he trea
ties which will ex mpt the merchant
having a permit from the United
States, and vending his merchandize,
by retail, within the nation, froni a
tax. By the 9lh article of the liea,!y
of Holston, it is provided, "that no'
citizen or inhabitant of the United
States shall attempt to hunt or des
stroy (he game on the lands of (he
Cherokfccs; nor shall any cilizen xir
inhabitant'go into the Cherokee country
without a passport first obtained,&c.
Cy the 1 4t!l article, it i& provided
lhat t!ie United States will send a
number of persons, not exceeding four,
to reside in the country, who sknif
qualify themselves lo act as .inter
preters: these persons shr.ll liavA'
lands assigned them by the Cherokee**
for cultivation, for themselves and
their successors in eftiee, but they
shall be precluded from exercising any
hind of traffick. These Articles are (!;<*
only ones to be found, which speak of*
a passport, or permission to go int<f
the nation.
The object of the provision in this
9th article, iC appears to me. i > very
obvious: il is to preserve peace witlr
the Indians, If all description!) of per
sons were permitted to enter the r.n
tion, this could r.ot he clone; disotv
derly immoral persons would make
their way in'o the nation, practice
fraud upon the Indians, and a war
might be (he ccnscfj:;;\;i e Hence
the stipulation thai i:o white person
shall cntcrlho nation without a prssport
from (he Government: b;;t il is not
said thafhis passport shall confer any
other privilege! upon l:im, last that of
excusing him from being corsiilercd-as
a trespasser, a person that is cuiiawpif
by his own Government, as one that
tlie Indians rnav punish or not, as (hey
choose. Before he obtains flic pci mis -
sion to go, he must satisfy his ovvif
Government as to the business npetT
which he wishes (o enter (he nation;
and if the Government believes he
can be safely trusted among (he In
dians, the ofiicer gives him a pei mis
sion toenter the nation, and in (hat
permission specifies (he business upon
which ha goes. It is a document
furnished him to satisfy the Chero
kees that the individual named in it
has the consent of his own Govern
ment to go into their country, for tlie
purpose of trading with them; there?
is not stipulation (.hat he shall, in any
respect, be entitled (o a privilege, a J
to his traffick, which their own pco*
pie do not enjoy. The exemption
claimed would give the man who
holds the passport the Sight of vend'
mg his merchandize upon better terms
than the resident merchant. This
surely never was intended. It can
not fairly be argued that this paper
is given in virtue of the power to reg
ulate trade. If so, find Congress are
to regulate (heir internal trade, how'
comes it that no license has ever
been required for the resident mern
chant? For years, Indians and InJiaif
countrymen have vended goods in their
own country, without any such in
strument: but the American citizen
who {vislies to go into the nation for
this or any other purpose, and does
not wish to expatriate himself, must
obtain tlie consent of his Government;
and litis written consent very imtttr*
.illy expresses (lie business which he
intends to follow while there. The?
Government derives no revenue from
these passports: and is an exclusive?
privilege to be granted without an ex
press stipulation in the treaty to au
thorize it ? I think it never was 111*
tended. If the Cherol.ees are to be?
considered as a -nation, they must
have power In impose taxes and
make other municipal regulations for
HO. 10.