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OMEliKEE PHOENIX, MB O IMAMS 5 ADVOCATE*
PRINTED UNDER THE PATHONAGH, AND FOR THE UENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO THE CAUSE OF INDIANS.—Ji. LCUDIKill,
VOL. II.
NSW 33CHOTA, WJELDFE3DA7 D320EMBEEL 30, IQ&9.
NO. 33.
«-••***' :
TRilfTED WttlL,
JNO. F. WHEELJEftl,
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ir.^ All letters addressed to the Editor
post paid, will receive due attention.
“whether
fee w n s
the seizure ; they cannot sell, except to the gov
in the Stale
"(^eorgiai or in the United Slates;”
?' *' , ‘her grants of land in the
but wliei.. ?, . ., „ ..
wilderness, whic„
h is now the State of
imrchasert
Mr Prime is seised in fee ol llie house, 1 prolcssed to deride, what Die legUlu-
ernnieiit. | and lias the ultimate tale lo him and five rigid oj u slate teas, in icgtird to in*
Here we have a clear distinction , his heirs. The lease of the house for dians within its limits. It implied,
between the rights of European*, as a thousald years may he worth; that, whatever the legislative right
ate of tixed by Europeans themselves, and , $l00,000\ and Mr. Prime’s‘-ultimate j ol a state, iti regard to Indians, might
users, a thousand times admitted by different j title” wimh is to be enjoyed by Ins be ascertained to he, Congress should
Illinois, made to piivaw. >773: tribes of Italians. The original in-j heirs a thousand years hence, would
ank«haw tribe of Indian., are good their e«£"J; »"<* u,, "5 > ’ “'!«* ■“ £»Sl'lo ,.n> a lawjra. <»' “Ain* a
a,,d aalid grant., hiadiusot, ihe court, .Ihey please, »,al.tig to ten '.M-j • ^ ( in diet t, say, re-1 of feet, the
° the United Stales I lie Court de-, crelton; the t cSi cntlanis , (ilt i vetting e the doctrine laid turn,, in |diepeled l,
cidcd, that such grants were not valid; have confided to their governmei-
and, in course of the decision, went
somewhat at length into the considera
tion of Indian title. Wo can confident
ly declare, in this very elaborate anti
candid discussion, the Court advanced
nothing, which has an unfavorable
hearing upon the claims of the Cher*
okees.
The Court said, indeed, that “the
United Stales, or the several states,
have a clear title to all the lauds
within our national limits.’ What
the Court meant by “a clear title”
exclusive power of extinguishing the
Indian title.
These principles are sufficient for
the absolute defence of the Chcro-
kt-es, so long as they behave peacea
bly,- alid are not disposed to sell their
country. Biit over and above all
this, the .United States have solemnly
uurantied to them all their lands;—
ll , i '’ case ol Firdcher and Peck, “The
decision it,:* Ihe rigid of pre-emption,
which the United ^ tcs are to exer
cise Ibr the use of Georgia; may ec
technically called a seisin in fee, no
more proves that Georgia may take
possession of the Cherokee country
end dii/e out (henatives, or that the
grantees ut Georgia may bring a sun
not infringe such right.
4. Tiie article docs not decide
irlmt the limits of a stale are, nor how
timy shall he ascertained. In point
nuts of Georgia were
the United Slates, lor
murt than twenty years after these
articles of confederation were a*
dopted.
5. 'I lie article was adopted before
any of our national treaties were made
with the Creeks and Cherokees.
Vet this article, which Mr. Madi*
son pronounced ‘ obscure and contra
dictory;” which described neither
owy JiMB 0-A AD list J EC.8.I _
VOATiXoan TAAff* U4 1 * JhcTBAvi within our national limits.’ What I hove, in a hundred instances, admitted
nsriE,ji,t>h.wy kta d^p wm ! the Court meant by “a clear title” I that the Cherokee country was under
1-4.!®., Tcr-z TF.o»o-r> DejrStidi-c»H. j is abundantly exp.ained to he the ex- I Cherokee jurisdiction, and irresistibly
TffZ Tcso.v Tn DeJ*o®Kd®.i, ur\ elusive right of acquiring the Indian implied, that it was not under theju-
D*a**Ez TB.yw i lands. European nations, thecolo- nsdictioii of Georgia.. I be same
DelAZ*aA, o-yjiT d,sp o»ejjja K4owt.; nics of Europeans, and the iudepend- ! thing has been implied, in numberless
c.vyz wit i»?y, wpa 1 * ’ cut nations ot North Amerina, have . instances, in (he .anguago ot the Le-
oeiiwi **hjl yVmivrcrz te»o-j»do-| all claimed that the goner ament, to the | gislolure and Executive of Georgia,
ktjIz d^p e^y-v e-sair j exclusion ot private purchasers, have
VAR de.«,!-(».r. . I he l iaht of acquiring possession of In-
have covenanted toexnel intruders;—I of ejectment against the Indians, sort of Indians were meant,-nor
have made laws for this purpose; and ! tlii.i get possession. Mian the lact that t yvhnt the legislative right of a state,
Mr Prime is seised in fee ol a house
in Vail-street would prove that he
misfit hiing an ejectment again t lot
conoration of t!ie Merchants Ex
change, when be l..ui himself put the
conoi ’ t iot, -'n ,-rtf:-*a-.iMn of the p» cm?
as could easily be shown if our limits
permitted. These agents of the
dim territory; and the foreign nations , state have always been in the habit of
could not intrude upon the discovery j distinguishing between the “chartered
of each oilier respectively. These - limits,” or the “conventional limits,”
principles have been constantly as- j and the actual limits ot the state. It
sorted by all the governments above is not five years since Governor Troup
mentioned, that they have become ; wrote a letter to the Secretary of
principles of established law; and the War, in which he argued, that the
Market St. Boston, Mass. j Court is bound by them, and cannot soil and jurisdiction of the Creek
Geojige M. Tracy, Agent of the A. B. ) .. ,, r i'
AGENTS FOR THE CHEROKEE
PHOENIX.
The following; persons arc authorized to
tpceive subscriptions anil payments tor the
Cherokee Phoenix.
Messrs. Peirce & Williams, No. 20
m regard to Indians, was,—nor what
the limits of a state w ere; this article
winch has been a dead letter for for*
ty years having been superseded by
express constitutional provisions now
in loree, and followed by numerous
ireaties, contai .ing express provisions
on the subject, is brought forward 10
deride what is the present condition
of the Cherokees. Was it brought
forward for any other reason, than
because t :e words sounded large to
C. F. M. New York.
liev. A. D. Eddy, Canandaigua, N. Y.
Thomas Ha stings, Uti.a, N. Y.
- Pollard St Conyers;:, Richmond, Va.
Revv James Campbell, Beaufort, S. C.
Wir.ti.vM M >ultrie Reid, Charleston,
S. C.
Col. George Smith, Statesville, W. T.
William M. Combs, Nashville, Ten.
Rev. Rennet Roberts, >’ .va 1 , Me.
Mr. Trios. R. Gold, (an itinerant Gen
tleman.)
Jeremiah Austil, Mobile, Ala.
Itev. Cyrus Kingsbury, Mayhew, Choc
taw Nation.
Capt. William Robertson, Augusta,
Georgia.
Col. James Turk, ftellefonle, Ala.
go into the consideration of principles country went together; and that ihotli
of abstract justice That is, as we “passed” to the state of Georgia by
all know, it is the duty of the Court the treaty of the Indian Spring,
to declare what the law is, and apply soil and jurisdiction passed <o Gc<
these who knew nothing about the
subject ?
If the editor of the Charleston Ob
server did not unders'and the nature
and hearing of the article, he should
From the New York Observer.
Wc proceed in the examination of
the proofs add teed by the editor of
the Charleston Observer, to sustain
his position that “the soil and juris
diction of Indian lands, is regarded as
belonging to the states respectively in l
which the lands lie; ’ and that ibis is
“in accordance with repeated dems-
ions.of the Supreme Judiciary of the
United States.”
The editor says:
In the (ms-! of Johnson and M’lntosh
the Supreme Court thus expressed
itself:
“It has never been doubted tliut ei-
II
corgia
it, not to make the law. The “cleilr by treaty, it requires no conjurer to
title,”, then which the government say, that they were not in Georgia be-
has to Indian kinds, comprises, first, fore the treaty was made', and of course,
the power of excluding foreign nations that the soil and jurisdiction of the
from intruding upon these lands; sec- Cherokee country, concerning which
ondly, the power of forbidding private i no treaty of cession has been made,
men from purchasing them: and third- ore not in Georgia.
ly, since the adoption of the federal We make two more quotations from ;
constitution, thb exclusive power of the opinion of the Court in the case of
the general government to extinguish ! Jol#ison and M’lntosh:
Indian title bv treaty. All these! “It has never been contended, that
claims of the government have been > the Indian title amounted to nothing,
admitted by the Cherokees, Creeks, Their right of possession lias never
di e asaus, and Clioetaws, in the been questioned. Theclaimofgov-
vai ions treaties now in force. The eminent extends to the complete ul-
liidians make no complaint, in regard timate title charged with this right oj
to these claims. Though their natur- possession, and to the exclusive power | should these treaties ever come he
al rights are circumscribed in this- of acquiring that right.'' 1 —p G()3. fore (lie Court, it will be seen that
manner, yet they very well know it W.e understand (he Court here as' the “judges" of this Court, and of
is for their benefit; and they would be declaring, that all the world admits every other Court in the United
the first to desire, that their commu- the rights of the Indirns to return , States are as much “bound '' by-them,
nitres might be defended from the in-1 their possession. The government j as by the constitution itself,
trisues i>f foreign nations, and the ! claims the sole power of acquiring j The editor of the Charleston Ob-
isc-s. by a lease of; th.-astn. I years
*T!i<* Che.'-kecs might “as effeetu-
a 11v !»;»r rm < jccfnieet” to use the ve
ry vords of tlie Court, by pleading
that possession, to which they
have a legal a ml just claim, as, in tlie
cnsi supposed, the Merchants’ Ex
change could resist the suit of Mr.
Prime, by pleading his own lease a
thousand years.
It is natural that people should . .
mistake in regard to the decision 0 fj "of have hazarded the leading of his
the Court, by the mere sound of Me yeoders mtr error, on a subject v.tak
Gy interest mg to thousands, many
thousands, of human beings, ir/iosi
present condition and rights ought lo be.
known. If he did know the real char
acter and total inaj plicability of the
article, we cannot dignify his conduct
in quoting it. by any better appellac
tion, than that it was throwing dust
in the eyes of his leaders. Why did
lie not quote the treaty of Abet mm,
or the late treaty of Adiianople; —
Either of these instruin; it's lias as
much hearing upon the present o m't-
(ion of the Cherokees as the article-
has. which was so osfeofaliously
quoted from the Old CoufedciatioiT.
ivordxised; that is, by taking llie pop
ular meaning of words, i«.itiltr than
the legal and technical meaning.—
Thus, for instance, the “undoubted
title” and the “ultimate title” oi an
acre of land bordering on Wall-street,
might not be worth fne cents; be
cause it might he charged and in
cumbered, with “the mere right oj oc
cupancyfor a certain period, which
right of occupancy might be worth a
million of dollars. But as to any mis
takes of this kind, the Court is not in
fault. In making legal decisions, it is
often a matter of necessity that tech
nical words should he used.
The Court was not called in either
of the cases cited, to say any thing a-
bout treaties with (be Indians; but
would no more think of complaining ot posse
that their natural rights are limited, j government is always to be under-
by the claims of the United States,' stood as charged, or incumbered, with
and the stipulations made, for the hen-j the existing occupancy of the Indians,
efii of both parties, in accordance j In other words the right of the In-
with these claims, than the people dians to occupy tlio.ir country us long
Bl j | of the United States generally would 1 ns they please., is hi.no wise diminished
titer llift Umted Mates or-tlte ttcvctal „r oo.nplaitting. Ih„t llie right, lor afetr.J, by the claim of the 8 m-
of the several states are abridged by | eminent to be the exclusive purchaser;
the powers giv°n to the general gov- and the claim of exclusive purchase,
states had a clear title to all the
lands within the houn ’ary lines de
scribed in tho treaty [of 1783] subject
only to the Indian right of occupancy.
nnu that the exclusive power to ex
tinguish that right was vested in that
government which mirdit constitution
ally exercise it.”—8 Wheatons Re
ports, p. 585.
“The real question presented by the
issue was “whether tiie seizure in
fee was in the Sta’e of Georgia, or in
the United States;” having decided
that the seizure in fee was in the
State of Georgia, the judgment was
that she could olien the lands in fee,
although they would be subject to the
Indian right of occupancy which had
not been extinguished.”
We are not disposed to visit with
severe censure an ordinary editorial
blunder; but when a citation is made
from a law-book, under such circum
stances, and with such an air, ns if
it were decisive of the controversy,
the editor, who makes the citation,
should at least give a true account of
the ppiiit decided. The question, in
tlie case of Johnson and M’Intush,
ernment.
In Ike passage takoi from Whea
ton's Reports, the Court said the ti
tle of llie United Slates was subject
to the Indian right of occupancy.—
What dpes the editor of the Charles
ton Observer think is meant by a right
of occupancy? Let him look again in
to Wheaton, p. 57 1, and he will find.
Hiat the Court said of the “original
inhabitants” of this continent general
ly, “They were admitted to he the
rightful occupants of the soil, icith a
legal us well as just claim to retain
possession of it, and to use it accord
ing to their own discretion.”
This is said, be it remembered,
or, as it has usually been called, this
right of pre-emption, is the “ultimate
title,” of which the Court speaks.
Again: “The absolute ultimate 'ti
tle has been considered as acquired
hy discovery, subject only to the Indian
title of occupancy, which title the dis
coverers possessed Tlie. exclusive
right of acquiring. Such a right
[that, is, the -Indian title of occupancy]
is no more incompatible with a seisin
Tn fee, than a lease for years is, and
might as effectually bar an eject
ment.”—p. 492.
Common readers, not being ac
quainted with legal terms,- cannot
take the force of this quotation. Let
respecting Indians generally, found in j us explain it. If Mr. Prime holds a
their native condition, and undefeud j house in Wall-street to himself and
cd by any guaranty of territory, or a- his heirs forever, he is said to he
nv express stimulation in their favor, seised,in jet of that house. lie may
The Indians, then, have the rtght of make a lease of the house, for a volu-
occupying their country, of retaining
pouession of it, of using it according to
tlitir discretion; and thus far they have
able censiderojion, to the corporation
of the Merchants’ Exchange, for llie
term of a thousand years, and the cor
fraud of private speculators. They of the Indians their unquestioned right ! server, quotes the following words;
aining of possession; hilt this claim of the viz. Congress has the power “of
regulating and managing all affairs
with the Indians, Hat members of any
of the States, provided that the legis
lative right cf any state» within its own
limits, be not infringed or violated."
Now these words, thus se*l off with
italics, seem very important; and per
haps the editor thought them so.—
But let it he considered,
1. That this article has been obso
lete for mote than forty years, having
had, during that time, no force what
ever.
2. That it. was superseded hy a
provision of the constitution, relating
to the same subject. On this provi
sion & the article for which it was a
substitute, Mr. Madison thus writes, in
the 42d number of the Federalist;
“The regulation of commerce with the
Indian tribes is very properly unfet
tered from two limitations in the arti
cles of i on federation, which renders
(he provision obscure and contradic
tory'. The power is there restrained
to Indians not members of any state,
and is not to violate or infringe the
legislative right of any state tviihir.
its limits. What description of In
dians arc to he deemed members of
a state, is not yet settled, and has
been a question of frequent perplexity
and contention in tlie federal coun
cils.”
3. The article never decided, nor
a legal as well ns just claim. But poration may take possession: still
From the New Fork Observer.
RIGHTS OF INDIANS,
In the case of Goodeli vs. Jackson*
which came before the Couit of Er-r
rors in this state, in February 1823,.
and is reported in 20 Johnson, 693—
734, Chancellor Kent expressed llie
following opinions respecting the rights-
of our Indians. We v ill only say, if
Indians, reduced so b w in numbers
and character as are the mise.able
remnants of tiihcs in this state, are
still sovereign communities, having
the right to govern themselves by their
own laws, the claim of the Cherokees
to this distinction must he past all
question.
“The Ooeidas, and the other tribes
composing the six nations of Indians,
were originally, free and independent
nations. It is'for the counsel, wko>
contend (hat they have now ceased to-
be a distinct people, and become coin*
pletely incorporated with ns, and
clothed with all tin rights, and bound
to all the dpties of citizens, to point
out the precise time when that event
took place. I have not been able lo
designate the period, or to discover
the requisite evidence of such an en
tire and total revolution. Do our
laws, even at this day, allow these In
dians to participate equally with us,
in our civil and political privileges?
Do they vote at our elections, or ore
they represented in our legislature, or
have they any concern, as jincs or
magistrates, in the administration of
justice? Are they on the other hand,
charged with the duties and burthens
ot citizens? Do they pay taxes, or
serve n the militia, or are they re
quired to take a share in any of the
details of our local institutions? Do
we interfere w ith the disposition, or
descent, or tenure of their property!