About Cherokee phoenix. (New Echota [Ga.]) 1828-1829 | View Entire Issue (March 6, 1828)
Faad SRRt S STV St TS, TN R e w%remaewmforw%mmfi A, and the i themselves were de-lared to be unde: fiqf%&?@&t‘iofig of Gireat Britain; and the lands reser-- ved were also uader the ““sovereignty, protection and dominion” of that. gov-. erament. Thusit is seen, that the sovereignty of Great Britaincver the ‘whole of Georgia was complete and perfect; that the absolute right to the goig was %fl‘@t 'tgg,. % lans gfire‘ under protet /5 urae i )OSSES= sion was only permissive. Things re m>ined in this condition until the revo lutionary war; upon the termination of which, by treaty of peace between the United States and the mother coun-. try sovereignty to the full extent as claimed, owned and exercised by Great Britain over all the lands and Indians within the State of Georgia, pessed 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 p 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 goluteé title to the soil was in her; that the Indians were under her proteetion; and that their possession was by her ge:'mission, as it had previously been y that of Great Britain. Thus far, we apprehend the premises that have TEsTAulTstrody and thoe ocon lucions f}m we have drawn, will not be disputed: for if they are wronz. the very argu meat that proves them tobe so. must defeat the title by which every foot of f2ld in the United States is held; for they all derive title in the same way. It now remains for us to shew, that since the revolutionary war, Geor gia has done no act, and entered into no rompact with her sister States. hy which she has divested herself of any portion of her sovereionty, affecting her rizhtsnow ir question. Aud this provosition will be supported, if we canshew that no such censequence can result from the articles of confed eration. the federal constitution, or the articles of agreement and cession 5f1302, To shew that the articles of confed eration have divested Georgia of no .portion of her sovereignty. it does not anpear to us necessary to take apy oth er oround than the very obvious one, that these articles have been abroga ted by the Federal Constitution, which was adopied in its place and stead.— But we contend, that even prior to the adoption of that Constitution, they contained no provision when properly construed, a(Fecting the right in ques tion. In the articles of confederation we find this provision: “Each State vetains its sovereigniy, freedom and in denendence: and every power, juris diction and right’’ which is not by the ¢aonfederation expressly delegated to the United States,” is reserved tothe people of the States. We may search invain in the articles of confed eration, for any express delegation of the right of sovereignty or jurisdiction by feorzia to the United States over the territory in controversy. Nosuch express delegation was ever made— ~4ho-consegquence. is obvigus; e served to the people of the State.— T ose who differ sith us in opinion, may atiempt to sustain themselves by one {urther provision in the articles of confederation—We allude to the pow er ziventhe United States of regula _tinz “‘trade,” and managing all affai with 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 the Legislative right of any State within its own limits.”” We are by no means satisfied, but that the Indians ros dent within the limits of Georsia, may fairly be considered ‘““members” of the State; if so, the United States possess not the right to interfere with them even so far asto regulate trade; bua' whether they be members of the State or not, the United States are expressly prohibited from interfering with them inanv way so as to ““infringe or violate the Tegisiarive right of the Siate within her own limits.” We think, therefore, that the articles of confederation have not affected our title in the least. L We next proceed to the enquiry, whether the State’s title to. and right of sovereignty over the lands in con troversy. have been affected by the Fedaral Constitution; and if affected. to what extent? We are not disnos- | ol to afford even the feehle aid of ouwr example for frittering away the Con gtitation by construction: we nrefor to take that instrument as it is, and not to take from, or add to its provisions.— We have always believed, and yet do, that all powers not ezpressly. granted. by that Constitution, or plainly implied in, and necessary and proper to the exe cution of the expressly ga"w power, are reserved to the States; and we earnestly insist upon this rule of con struction, so far as that instrument ap plies to the subject under considera ’Lio{l. By oet L ~.,-__,-.‘N"'»‘—«’\:{u. ;4.,‘ I the Gidrd séction of “the fourth article of the Constitution, we find this provision: ¢ Congress shall have power to dispose of, and make all needful rules and regulations respeo@j ing the territory or other property be: longing to the United States; and noth~ ing in this Constitution shall be sg construed, as to prejudice any claims of the United States or of any partic-{ ular State.” ~We are unable to see what argument can be fairly drawfi {rom this provision, toshew that Geor; gia has surrendered up to the U St.atex any portion of her rights so as to affec the present question. This provisiof cnly gives to the United States th ‘ power to control and dispose of thj territory or property of the -Ge'nem'( Government; but it vests them witl no power whatever to cortrol or dis: pose of the territory or property of any State; on the contrary It is ex pressly stipulated, that in the exer- | cise of this power, the claims of no farlicular State shall be prejudiced. t will not be conténded we appre hend, that since the articles of agree ment and cession of 1802, the Upited States have the smallest shadow of a title to the lands in_ controversy; and if it were considered necessary. we could easily shew that even before that time, they had no well founded title. There ‘is, therefore, nothing in this part of the Constitution expressly or impliedly divesting Geergia 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. i 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 apon ihe preseis questions 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 mistake not, since the adop tion of the Constitution, Virginia, Ohi 0, New York, and Kentucky, have exercised the right of treating with the Indians residing within their limits; and their right to do so, has not so far as we know or believe, been disputed. But upon this point we feel no sort of solicitude, for it is sufficient for, our purpose, that in the Consfitutional pro vision now under review, there is no express or plainiy tmplied 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.— d we consequently arrive at the flclusion, that the rights and powers of Georgia in and to the lands in ques tion, 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 empire; 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 beg leave to refer to the decision made by the Supreme Court of the United States in the famous case of Fletcher & Peck; which fuly establishes the principle, that the ¢ Legislature of Georgia, unless restrained by ifs own Constitution, possesses the power of disposing of the unapnropriated lands within her own limits. in such manner as her own judgment may dictate.” And the same case establishes the fur ther princinle, that ¢ the Indian title is only permissive and temnorary. and not at all iheonsistent with a seisin in fee on the part of Georgia.” We need onlv add. that this decision was mada Iz sihsaquent to the adoption | of the Federal Constitution. | iup llber laims and rights, ‘Doth ol vicnain and empire (o th%;i"f?"‘f tory iicby eeded to the. United States; utthese articles contoin v Jovel, e ndEess -surrevder of any sueh vight (o the tgrritory veserved.— Ao St oyt Sl daen e 6 e l,?‘ ’l(_ ' ? 19 2 ] e i '.1“! 4 o¢s Dot 1) »cessarily result from the emises.| ‘T'his term was not intend ed, and cafniot be understood as build ing up, anf! vesting ixzéhe Indians, any kind of #:t/le to the Jands in controversy; nor was | intended th add to, or de tract fron) the title vhich they alrea "dy had. |l was only used as aterm descriptive of that title. We have already scen what that title was; that it was a nhcre possessory one; ayfi that they had fo litle interest it the ‘soil; that theix! possession. was ‘not incon sistent w'th a seisin in fe¢ on the part of Georgia. Butit is contended, that by the ar’icles of agreement and ces sion, a consideration was contemplated to be paif gy the United States to the Tndions. f(or their relinquishment of this title; and therefore that it was of such a character as was entitled to respect, and as-could not be taken from them unless by their consent. We are of‘n_;i.fl‘erent opinion. ‘We have alréady Y-én the fragile temure by which they held, and do yet hold those lands; by however slender it may have bee:, yet some act was necessary to be doe by the United States or Georgia, 'n order to oust them of pos session. 'This act must necessarily. have hew of either a warlike or pa cific cliciaeter. - Ifof a warlike char acter, noconsideration of a pecaniary nature coild benecessary; but if of a pacific ¢laracter, then the object was to Lie « omplished by n=gotiation, and a cons’ diration would necessarily be the ¢ sit. - Whenever it has been neecs «y to accomnlish a similar act with tl~ Cherokees, or any other na tion of Indians, by either of the means just mertioned, from obvious motives of nolivy, as well as hu ianity, the United States have preferred resort “ing {0 dezotiation and presents. In all _such (isiances, the United States “wert: iV no means’ bouitd 1o TEsort 1o such wi-'uzasures; they did so from choice ; . ; This custom was well known to the coniracting parties to the articles of acreement 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, presents ‘and consideration, which o therwisg would have fallenu on Geor-* zin. hadlshe proceeded to the accom plishment of the same object by pa cific megms. But there is nothing in this nravision which prevents the Unit ‘ed States or Georgia from resorting to force; on the contrary, this right seems to be admitted, although the ‘United(\Stan—ts would not bind them selvestuse it. -At all events it is “evident that if Georgia possessed this right before entering into those articles. ‘she possesses’it yet, for a surrender of it is no where to be found. Before Georgit become a party tothe arti cles of 'agreement and cession, she could rizhtfully 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 made it the duty of the United States to snstain the expense of ob taining for her the possession. provid ed it could be done upon reasonable terms and by negotiation: but in case it should become necessary to resort to force. this contract with the United States makes no provision: the conse quenceis. that Georgsia is'left nntram melled and at full liberty to presecute her rights in that point of view, ac cording to her own disoretion, and as thon Remdsstich contract had~ been made. Your committee, therefore, arrive Tt this conclusion: That ante rior to the revolutionary war, the lands in question belonced to Great Britain; that the r ght of sovereionty both as to domain and empire was com plete aad perfect in her; th't the nossession by the Tndians was permis sive; that they were under the nro testion of that Government; that their title was temnorarv: that they were mere tenants at will: and that snch tenaney might have heen determined at any pjoment either by negotiation. "or force at the pleasure of Great Bri tain® That uvpon the termination of the revolutionary war, and by the treaty of peace, Georgia assumed. all the rights. and powers in relation to the lands and Indians in question, which before belenged to Great Britain—That since that time, she has not divested herself of any right ~or power in relation to the lands now %n quefli;fiii further than she has inre lation to all the balance of *her territo ot e bt and has the power and right to }os 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 is in Georgia, and that she may rightfully possess herself of them when and by what means she ple: 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 that 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’—Yet we do confidently believe, that they have been induced to assume this lofty bear ing, by 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 Geeneral 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 appeal be made to the General Government, with a view to open a negotiation with the Cherokee Indians upon this sub ject—Fhat 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 provesto 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 whote 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 may 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 simple, to the use of particular Indians. not to exceed in the aggrezate 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 “sonand 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. L ' Influenced by the foregoing consid ‘erations, your Committee beg leave to offer the following resolutions :— Resolved,” 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 which now exist to an extinguishment of the ‘ndian title, have resulted alene from the acts and policy of the United States; it would be unjust and dishon orable in them to take shelter behind those difficulties. : Resolved. That all the lands appro priated and unappropriated, which lie within the conventional limits of Geor gia, belong to her ahsolutely; 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, by taking possession of the premises—And that Georeia hos the right to oxtend her authority and laws over ber whole territory, end to coerce obedience to them from izl de ~scraptions of people, be them white, red or black, who may reside within her limits. - e ~ Kesolved, That Georgia entartaing for the general gevernment so high a ‘regard, and is so solicitous to dono act that, can disturb; or tend to disturb the public tranguility, that she will vot “Jgj‘txempt to enforce her rights by vio= leace, Qfilfl all other means of redress o i R D SRR R e avesited by ngj, G ISR trophe which nene would more B cerely ‘deplore than ourselves, we. make this solemn—this final—this last appeal to the President of'the United States. tht he take such steps as are -usual, andas he may deem expedient and proper for the purpose of, and preparatoly to the holding of a treaty with the liitherokee Indians, the ob- Ject of wheh shall be, the extinguish ment of tieir title to all or any part of the lancs now in their possession, within thelimits of Georgia. Resolved, That if such treaty be held, the Etesident be respectfully re quested toinstruct the commissioners - to lay a {opy of this report before the Indinns’ in convention, with such comments »s/muiy be considered just and proper. hon the nature and extent cof the Geosin title to the lands in cagi'soversr, and the probable conse quences wiych will result from a con “tinved refisal upon the: part of the Indians tg porf with those lands. @™ that the eeg*n;,‘ ioners be also instrue ted to graf i 1% find it absolutely necesgary eeofivéstof land in favor of indivit' 21 {B2 5 emdnhabitants of the nation J. &o« Ay one-sixthpart of the ¢ b&; . Beguired, the seme to b. Bk &;iure purchase by the Gn. Em e dbe use of Georgta. l Resalrdd. " aat s excellency the Govemr, )¢ e ested to forward acopy ol ! ¢ faregoingßeport & Reso lutions to 1% President of the United States, anil one to our Senators ond: Representi'ives in Congress, with & request that they use their best exer tions to obiain the objects therein ex» pressed. ‘ INDUIAN COUNCIL. Mr. Peon, when he first arrived is Pennsylvania, in the year 1683, and mude a treft et QbR g B following ofiservations, in a letter he ‘then wrote |fo his friends in England. ¢ Every kil has his council, and that consists of {iil the old and wise men of his natio}, which perhaps are twe hundred people. Nothing of moment is undertaken, be it war, peace. sell ing of land, or traffic, without advising ing with them. ’'Tis admirable te consider how powerful the chiefs are, and yet how they move by the breath of the people. T have.had’ oceasicu to be in cunncil with them upen trea ties for land, and to adjust the terms of trade. 'Their order is thus; the king sits in the middle of an kalf moon, end hath his' council, the old and the wise on each hand. = Behind them, at a little distance, sit the young fry, in the same figgre. Haviug consulted and resolved their business. the king ordered . v of them to spesk {onie.. He came¢ 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 te me; and that now it was not he, but the king who spoke, because whdt he should say was the king’s mind. Du ring the tinte this person was speak ing, not a gran 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 wise, who - out-wits them in any treaty about a thing they understand. At every sentenee thes shouf, and say amen, in their a 2 e M:. Svalth, in his history of M. Jen sey. confirras this general statesent® ¢ They. grafiéfieven to sadness, upon. aay €yt unon; ond me: o £ upEw serios ;‘ sslpsaieobsonvan.: dy i’,:’:“" iir cdumagpe, aad respecifal to e 6 ged fi 2t eool and celibevate —novers fos.e to speak, but Wil for oof " hiy, ‘that the persen whe spa’ & he? fi-@é‘%fifi« had finished alf he [od te 377, They seemes to hold Europaan vivacity in contemnt, be cause they found such as came among them. apt to interrupt each other, and frequently speak altogether — Their hehaviour in public comneils was strictly decent and instructive. Every one in his furn. was heard. acs cording to rank of years os wisdom, or servicas tehis country, Not a
