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CHEBOfiJE PH<ENIX, AND INDIANS 9 ABTOCATE* JW& PRINTED UNDER THE PATRONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO THE CAUSE OF INDIAN’S. Ei BOUDINOTT, Editor. NEW ECIIOTA, WEDNESDAY JUNE 3,1829. VOL. Jt|.~NO; 9/ PRINTED WEEKLY BY JNO. 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 the Cherokee language the price will be $2,00 in advance; or $2,50 to be paid within the year, .. Every Subscription will be considered as continued unnless subscribers give nnticeto Jhe contrary before the commencement of a hew ycar,aiW all arearages paid. Any person procuring six subscribers, hnd becoming responsible for the payment, shall receive a seventh gratis. Advertisements will be inserted at seven ty-five cents per’ 6quare for the first inser tion, and thirty-seven and a half cents for each continuance; longer ones in propor. tion. _ |C3*Ali letters addressed to the Editor, pdst paid, will receive due attention. sivy jtdivfrA Ad lsuecu. V»AVXm)wI TAAf» TNT JIirfBAJ B9/LE k lhWIi^t(»y KT./1 D.0P 0°0JD.l iy4XA TGTZ TEiWO-J"- D0J»5w>I*<».l. TGTZ PLP TdSO-A TB D6J*d5l*oe^I, KT CP9JBA I-4oi>Jt. D»UL5>c»EZ TB yiV T)I*-(3)A, 0-y.O.T DJP O’0JB-l gwyz <fg.r ^hWiiAoey, wp*b* d?^ 0°8JB.JI D4dea fSABiT 5 , TGTZ tEiMO-J’’ D0* ktaz d$p otdyv wsair JCUR D0J»5i®I*<»a. AGENTS FOR 1 HE CHEROKEE THCEN1X. The following persons are authorized to receive subscriptions and payments for the Cherokee Phoenix. Messrs. Peirce &. Williams, No. 20 Market St. Boston, Mass. George M. Tracy, Agent ofthe A. B. C. F. M. New York. Rev. A. D. Eddy, Canandaigua, N. Y. Thomas Hastings; Utica, N. Y. Pollard & Converse; Richmond, Va. Rev. James Caaipbell, Beaufort, S. C William Moultrie Reid, Charleston, S. C. ... Col. George Smith, Statesville, W. T. William M. Combs, Nashville Ten. Rek. Ben^et Roberts—Povtal Me. MV. ThOs. R. Gold, (an itinerant Gen tleman.) Jkremiah Austil, Mobile Ala. Rev. Cyrus Kingsbury, Mayhew, Choc taw Nation. Capt. William Robertson, Augusta, Georgia. Col. James Turk Bellfontc, Ala. ; INDIANS. MEMORIAL of John Ross, Richard Taylor, Edward Gunter, and William S. Coodey, in be half of the Cherokee Nation. To the Honorable House of Repre- septalivea of the United States, in Con• gress assembled:—The undersigned memorialists, in behalf and under the authority of the Cherokee Nation, humbly showeth: I’hat a treaty was entered into by their nation with thd United States, at Tellico, on the $4th day of October, 1804, ceding to the United £>tates a tract of land on the frontier of Georgia, for which tract the sum of five thousand dollars tras stipulated te the nation, to be paid on the execution of the treaty, and a permanent annuity of one thou* 6and dollars per arinunl. Owing to home unknown cause, or neglect on the part of the Government, this trea ty was never constitutionally ratified Until the 17th of May, 1824, and the ttation received no part of the annuity Until some time in 1825. Immediate jpoBsession of the lands was surrender ed to thi United States, but she con tinued to use and derive interest from the moneys promised the nation for twenty years thereafter. We believe, upon every principle of justice, that our nation is entitled fo usury on this money from the Government, at the rate of six per cent. per annum, ma king a sum of twelve thousand six hun dred dollars. We humbly solicit and prav that your honorable bodies will authorize the payment of the above sum by the passage Qf«fciU for the relief of the nation. Wu beg leave, further, tq bring one othor subject before you: The aura.of $1,589 25 cents was stopped out of Qifr annuity in 1$25, by the then Secretary of War, for the use and benefit of certain traders, who had paid taxes under the laws of the uation, for vending merchandise with- in its limits. This was done under a plea that the nation had no l ight to impose taxation upon licensed traders, predicated upon the opifiion of ihe At torney General on the subject. The national authority are of the opinion that they have a right to impose a taxation, and are supported by the ably written opinion of the Honorable Hugh L. White, of Tennessee. This subject was submitted before Con gress, by Hie Cherokee Delegation, in 1824, with the opinions of the At torney General and Judge White, but was not acted on. Since then, the above-mentioned sum has been deduct ed out of our annuity, inconsequence of which our nation is much aggrieved. In taking a proper view of this sub ject, and considering our rights, and the relationship we sustain to the U- nited States, as recognized and estab lished by existing treaties, we cannot but indulge ourselves in the belief that you will order the above sum to be refunded by the passage of a bill for the relief ofthe Cherokee nation: and, in duty bound, your memorialists, in behalf of their nation, will ever pray. JOHN ROSS, R. TAYLOR, EDWARD GUNTER, WILLIAM S. COODEY. Washington City, Feb. I0t/i, 1829. Extract of a letter from Col. Thomas L. M'Kenney to the Cherokee Delegation, dated Department of War, 'Office of Indian Affairs, lid, Feb. 1825. ‘‘1 am directed to inform you that the annuity due your nation for this year, as also arising out Of the'provis ions of the treaty of Tellico, will be paid to you on your authority to draw the same, after deducting the claims of M’Ghee and M’Carty, Morgan and Hufl'acre, Jacob M._ Scudder, and William Thorpe, licensed traders, for levies made by your nation upon them for taxes, amounting, altogeth er, to fifteen hundred and eighty-nine dollars and twenty-five cents. 1 am respectfully, &c. &c. TILL. M’KENNEY. To Jno. Ross, Geo. Lowrey, and Elijah Hicks, Chcrokeee Delegation. April 26, 1824. Sir: When you applied to hie through Mr. Jacobs for an opinion up on this question, whether the Chero- kees had the power to collect a tax from the citizens of the United States residing within the nation, and having a license or permit to trade with the Cherokees, 1 was like ignorant.of a the purpose for which it was desired, and the trouble it was to occasion. Had I foreseen that it vitas either to pro duce a difference of opinion between any portion of your nation and those who administer the federal Govern ment,- or to strengthen an opposition then existing, I would not have given any: but such an opinion as then en tertained was furnished, and that un der circumstances which did not ena ble me t« accompany it with the rea sons upon which it WHS founded. Be ing now informed by you that the same question has been differently considered by others, and that you wish from me the reasons in support of my opinion, I proceed to comply with your request, as aq act of jus tice to myself. In doing this, I wish you to bear in mjnd that but little re liance ought to be placed in my opin ion, whan opposed to gentlemen as milch distinguished for the extent of their information as for the soundness of their judgment. The Cherokees, if viewed as a na tion unfettered by treaty or compact with any other nation, would, un doubtedly, possess the power of es tablishing such a Government as would he pleasing to themselves: they would at the same time have the power of ^posing a ferarupou the per sons or property within the limits of their territory, for the purpose of raising a fund to defray the expenses of that Government. The only ques tions then necessary to be considered are, whether they are to be viewed as a nation; whether they have entered in to treaties or compacts with the United States; and in what con dition they arc at present placed by their own stipulations. 1 am under the impression, that, prior to the year 1791, theirj condition was viewed in different lights by different in dividuals. A small portion only of their means of subsistence was produced by the cultivation of the soil; they were neither agriculturists por herds men, but hunters, relying almost en tirely for a subsistence upon the game they could procure. While in this state, many believed they had no per manent interest in the soil upon which they dwelt, and they were to be con sidered as tribes of savages, in whom little or no confidence could be re posed. Others believed they had an interest in the soil which they were found in possession of, & this under persuasion ihade extensive purchases of them. In the year 1777, the State of North Carolina held a treaty with them, and fixed tlieir boundary line almost at the very spot to which a previous purchase made by Brown had extended. This treaty, as I be lieve, speaks of them as a tribe, and allots to them a portion of country, as hunting ground. The Legislature of that State kept up the same idea in the different acts passed for tlie sole of her western lands. She always appeared to act upon tlie principle that they had no permanent interest in the soil; and that she had a right, whenever her necessities required it, to curtail their limits, and make them a more limitted allotment for their hunting grounds. In the Revolution ary war they had taken a part with Great Britain, and wero viewed as having been conquered when our inde pendence was established. The first treaty between them and tlie United States was on the 28th of November, 1785. In that instrument, the terra nation is seldom to be found, as ap plied to them; they are spoken of as a “tribe,” the “Indians,” the “Chcro- kees.” The idea is most strongly communicated, from the whole tenor of the instrument, that they were viewed as a conquered tribe, not in a situation to insist upon the insertion of any one stipulation in their own fa vor, but submitting to whatever terms their conquerors chose to impose.— In the 4th article, which fixes the boundary between them and the whites, they were not viewed as hav ing a title to any lands; the terms used are, “the boundary allotted to the Clferokees for their hunting grounds.” Not a hint is given that a desire was then felt that they should cease to be hunters, and become tillers of the earth. As was reasonably to have been anticipated, it was hot long un til another war took place between them hnd the whites, which lasted several years. The next treaty be tween them and the United States is dated the 2d day of July, 1791. In the mean time the Constitution of flie United States had been adopted.— Upon looking into this second treaty, we are at once struck with the re markable contrast between the lan guage here employed, and that used in the treaty of 1785. They arc spoken of as a “nation” in every place where they are alluded to; the w ord tribe is discontinued. Terms are used in tlie stipulations which communicate the idea that each party was free to act; that there u r as to b<5 a confidence re posed by each party in the other.— The country'to he acquired is spoken of as one owned by the Indians. Words proper for the conveyance to the Uni ted States of an interest in the soil are used by them in the 4th article: “release, quit claim, relinquish ami cede” all the lauds, &c. In the 14th article, a' desire Is manifested to re claim and elevate them to the grade of herdsmen and cultivators of the soil; and this for tlie purpose of civil izing them; and lor their encourage ment, they are to be gratuitously fur nished with the implements of hus bandry. But what is of still greater importance, and ppihaps a stronger inducement, they are made sure of a permanent home: by (he 7th article, “The United States solemnly guaran ty to the Cherokee Nation all their lands not hereby ceded.” It is believed that this phraseology is continued in the subsequent treaties; and several additional inducements are held out, to increase the desires of Indians to adopt the habits and pur suits of civilized man. With this 'plain language before nie, I am not at liberty to 4pubt but the Cherokees are to be considered as a Nation, a community, having a country distinct ly marked out and set apart for tlieir use; that tlieir interest is as perma nent and fixed in it as the pledge and the faith of the United States can make it; inasmuch as they have so lemnly guarantied it to them as a na tion, without any limitation of time.— If, then, they are a nation, having a permanent interest in tlieir lands, Why is it that they are not as independent as any other nation? Why is ii that they have not the same power to im pose taxes, for the. purpose of defray ing the expenses of tlieir internal Gov ernment, as the United States have? The answer must be, that, if they do not possess this power, it is because they have lost their independence, in this particular, by virtue of some ex plicit stipulation, in some subsist ing treaty between them and the U- nited States. 1 now proceed to the examination of this question; hut be fore consulting the treaties, will bare ly advert to a clause in the Constitu tion of the United States, w hich has some relation to this subject. In the 8th Sectibn of the 1st article it is said, Congress shall have power “to reg ulate commerce with foreign nations, and among the several States, and with the Indian tribes.” I have never heard it intimated, aiid presume 1 nev er shall, that, in consequence of these words, Congress have the whole pow er to regulate commerce with them; and therefore; they cannot impose a tax upon a merchant residing within their limits, because, by doing so, they would usurp a power vested ex clusively in Congress. To so crude a notion, it would be sufficient to suggest, that the words here used in relation to the Indians are precisely similar to those used in relation to foreign nations; and it is hardly presumable that it ever w as ex pected, that, because Congress is vested with power to regulate com merce with foreign nations, she is therefore vested with the right of in terfering with the municipal regula tions of either France or Great Brit ain. The first treaty made by the U- uited States with the Cherokees is that of Ilopcuell, dated 28th Novem ber 1785, before mentioned. The 9th article is in these words, “For the benefit and comfort of the Indians, and for the prevention of injuries or op pressions on the pait of the citizens or Indians', the United-States in Congress assembled shall have the sole & exclu sive right, of regulating trade with the Indians,4* managing all iheir affairs, in such manner ([$ they think proper.” In considering the political condition of the Indians, the powers which the United Stales can exercise over them, and the powers which they can them selves rightfully exercise, some have laid in jell stress upon this article, and made it the main source from which the powers of the Federal Oov- vermnent over them are derived.— Unless there is something more to be found upon this subject than is to bo met with in the treaties, I incline to the opinion that ft is not in farce. Not long after it was formed, a war look place between the Indians and the ..whites, in all the forms with which such wars were then waged, and at tended with most of llieir cruelties. ' The Indians cither thought, or plot fessud to think, that the whites had violated this treaty by encroaching upon the lands allotted to them, and making permanent settlements wilhiij their boundary. They waged a war which lasted a considerable lime.--» This war put an end to this treaty. It- had no binding force upon either of the parties afterwards. If its proviso ions were ever again obligatory, it is, not because they are found in thig treat) 1 , but because of some stipulat lion in some subsequent treaty. 1 do not wish to be understood as saying’ that a war always terminates cvcry stipr ulalion in a treaty: if the stipulations’ are 6uch as have beeu entirely extents td. or if they Ore such as are to Lc cxc% exited in case of a iyar, they may re» tain their force, notwithstanding the. war; but such as those contained ii; the treaty 1 am now considering, amf especially those contained m this 9tfi article, must and do terminate whcij war commences. Hostilities com-, raenced and persisted in were tlie strongest possible indications that the Indians were determined the United’ States should net have the right of icgf. lilaling tlie trade with theln, nor of managing any of their concerns. li£ the course ofthe w'ar, the penalty for the infraction ofthe treaty waseitheif exacted in the punishment inflicted; or an adequate compensation made upon tlie restoration of peace. It isi obvious that this is the view whiolj the United Stales have taken of thi* subject, 'i he treaty of Ilolston, dat ed 2d of July, 1 '391, is called a treaty. peace Si friendship. The 5d article of stipulates a restoration of prisoners cn tacli side. AV'liy those things, if a v.ar hud not existed? They would be uhaccpuntablb. By comparing the provisions ihade in tlie treaty of Ilolv ston with those contained iii that of, Hopewell, they are found to Le often upon the same subjects. How is this' U> be accounted for, if we do not sup ppse those iu the treaty of Hopewell wen* no longer ubligutoiy? But what places this matter iu a strong light tef my mind is tlie contents of the 1st ar ticle of the treaty in Philadelphia,' dated 2Gth June, 1794. Shortly after the treaty of Ilolston a war took place, peace is re-estab lished by the treaty of Philadelphia; and the treaty of “Ilolston” is declar ed to be in fuil/urcc, to all intents am! purposes, as well w ith respect to the. boundaries therein mentioned, as in alk other respects whatever. The Unit-' ed States well knew that, from Urn tenor of these treaties, the war put an end to the obligations of liiofct, if pot all, their provisions; hence, at the termination ol the w ar, there is an ex press declaration that the provisions of the prior treaty shall be, to all in tents and purposes, in fort:c. In the treaty of Ilolston there is no such stipulation or declaration in rela* tion to the treaty of Hopewell. '\Vhy r was it omitted? Because neither of the parties intended its provisions shold be any longer obligatory upon them? They had agreed upon different terms, and the new treaty contained every provision thought necessary. Again: If, when the treaty of Philadelphia was made, thd treaty of Hopew ell; or any of its jtrovisions, was intended to be in force, why not make the same declaration in relation to it that was made in relation.to the treaty of Holt sfon? rft such declaration was made; and when there are express stipula-' lions made in the treaty of Ilolston, upon the same subjects treated of in that of Hopewell, and different laiw guage employed, I must believe it was with a view to change the idea. I am aware that some have believed the treaty of Hopewell was revived, by the 2d article of the treaty of Tellico, dated the 2d day of October^ 1798. It is in .these words: “The treaties subsisting between the pres ent contracting parties are acknowl edged to be pf full and opernfmg fOi cef