Cherokee phoenix. (New Echota [Ga.]) 1828-1829, March 06, 1828, Image 2
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l were reserved for the use of the In
dians, and thelndians themselves were
declared to be under the “protection 1
•f Great Britain; aqd the lands reser
ved were also under the “sovereignty,
protection and dominion” of that gov
ernment. Thus it is seen, that the
{jovern1|;nty of Great Britain over the
whole of Georgia was complete and
perfect; that the absolute right to the
! soil was in her; that the Indians were
under protection: and that their posses
sion was only permissive. Things re
in lined in this condition until the revo
lutionary war; upon the termination of
w}hoh. 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,
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 a right to exercise absolute
control and sovereignty over the
whole of the territ ory lying within her
limits; that her claim to domain and
empire wa& not disputed; that the ab
solute title fo the soil was in her; that
the Indians were under her protection;
and that their possession was by her
permission, as it had previously been
oy that of Great Britain. Thus far.
We apprehend the premises that have
established, arid the conclusions that
tve have drawn, will not be disputed -
for if they are wrong, the-very argu
ment that proves them to be so, must
defeat the title by which every foot of
land 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 compact with her sister States, by
Which she has divested herself of any
portion of her sovereignty, affecting
ner rights now in question. And this
prooosition will he 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
#fl802.
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 any oth
er ground than Idle very obvious one,
that these articles have been abroga
ted by the Federal Constitution, which
was adopted in its place and stead.—
But we contend, that even prior to the
adoption of that Constitution, they
contained no provision when properly
.construed, affecting the right in ques
tion. In the articles of confederation
We find this provision: “Each State
retains its sore 'eignty, freedom and in
dependence; and every power, juris
diction and right'' which is not by the
“confederation expressly delegated to
the United States,” is reserved to the
people of the States. We may
dearch 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—
the consequence is obvious; it is re
served to the people of the State.—
Tnose who differ with us in opinion,
may attempt to sustain themselves by
jone further provision in the articles of
confederation—We allude to the pow
er given the United States of regula
ting “trade,” and managing all affairs
with the Indians, not members of any
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 limit?.” We are by no
means satisfied, but that the Indians
resident within the limits of Georgia,
may fairly be considered “members”
of the State; if so, the United Slates
•possess not the right, to interfere with
them even so far os to regulate trade;
but whether they be members of the
State or not, the United States are
expressly prohibited from interfering
with them in any wav so as to “infringe
<*r violate the legislative right of the
S J ate within her own limbs.” We
think, therefore, that the articles of
confederation have not affected our
title in the least.
We next proceed to the enquiry,
Whether the State's title to. and right
©t" sovereignty over the lands in con
troversy. have been affected bv the
Federal Constitution; and if affected,
to what extent? We art. not dispos
ed to afford even the feeble aid of our
e\-o*nole for frittering away the Con-
tmion hv construction: we nrefer *o
foke that instrument as it is, and not to
take from, or add to its provisions.-—
We have always believed, uuuyel do,
ihat 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 of con
struction. so lar as that instrument ap
plies to the subject under considera
tion.
In the third section of the fourth
article of the Constitution, we find
this provision: 1 Congress shall have
power to dispose of, and make all
needful rules and regulations respect
ing the territory or other property be
longing to tltc United States; and noth
ing in this Constitution shall be so
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 drawn
from this provision, to shew that Geor
gia has surrendered up to the U States
any portion of her rights so as to affect
the present question. This provision
nly gives to the United States the
power to control and dispose of the
territory or property of the General
Government; but it vests them with
no power whatever to control 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
particular State shall be prejudiced.
it will not be contended we appre
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 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 Georgia of the
right of sovereignty in question, and
from the very fact, that no such right
was surrendered up i-ito 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
upon the present question; but we are
unable to discover any necessary con
nection between ihio piuri»» n a, tko
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 that those treat ies have been sub
mitted to the Senate for ratification;
but if we mistake 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 has not so far
as we know or believe^been disputed.
But upon this point we feel no sort of
solicitude, for it is suffi dent for ouv
purpose, that in the Constitutional pro
vision now under review, there is nt
express or plainly implied surrender on
the part of Georgia of her right of so
vereignty to tho 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
conclusion, 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; hut
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 fanjmis case of Fletcher
& Peck, which fully establishes the
principle, that the “ Legislature of
Georgia, unless restrained by itc own
Constitution, possesses the power of
disposing of the unappropriated lands
within her own limbs, in such manner
as her own Judgment may dictate.”
A»id the same case establishes the fur
ther principle, that “the Indian title
is only permissive and temoorarv. and
not at all inconsistent with a seisin in
fee on the oirt of Georgia.” We
need only add that this decision was
made long subsequent to ♦he adoption
of the Federal Constitution.
By the articles of agreement and> or force at the pleasure of G
cession oHM 2, Georgia parted with tain- That upon the termil
and gavejtip all her .claims and rights, the revolutionary war, an
both of domain and empire to the terj i- ' ~ .
tory thereby cecea to the United
States; blit tbe&e articles contain no
formal and expuss surrender of oi.y.
sueh right to the territory reserved.Bflttflh—That since that time? she
W e are aware, that suth surrender is
claimed to beAmplied from the term
“ Ir dinn liflfv’ there used. But
treaty of peace, Georgia assi
the rights, and powers in rel
the'.lands and Indians in question,
.before belonged to Great
Irdian title’’ as tbere used. But
wbenJ-Jje subject, is properly under
stood, we contend that this conclusion
does not necessarily result from the
premises. This term was not intend
ed, and cannot be understood as build
ing up, and vesting in the Indians, any
I iml oCtitle to Ihe lands in controversy;
ror was it intended to add to, or de-
,‘ract from the title which they alrea
dy had. It was only used as a term
descriptive of that title. We hare,
already seen what that title Was; that
it was a mere possessory one; and that’
they had so little interest in the soil,
that their possession was not incon
sistent with a seisin in fee on the part
of Georgia. But it is contended, that
by the articles of agreement and ces
sion. a consideration was contemplated
to be paid by the United Slates to the
Indians, for their relinquishment of
this title; and therefore that it was
of such a charac ter as was entitled to
respect, and as could not be taken from
them unless by their consent. We
are of a different opinion. We Have
already seen the fragile tenure by
which they held, and do yet hold those
lands; but however slender it may
havepeen. yet some act was necessary
to hi done by the United States o;
Geoma, in order to oust them of pos
sess 5 ^. This act must necessarily
have been of either a warlike or pa-
cific character. If of a warlike char
acter, no consideration of a pecuniary
natilrc could be necessary; but if of a
pacific character, then the object was
to lie accomplished by n ;gotiation, and
a consideration would necessarily be
the; result. Whenever it has been
netessarv to accomplish a similar act
wjl.ii the Cherokees, or any other na-
lipn of Indians, by either ofthe means
j'jst mentioned, from obvious motives
of policy, as well as hu lanity, the
United States have preferred resort-
bur to negotiation and presents. In all
su h instances the United States
were by no means bound to resort to
eiicb measures: they did so from
choice.
This custom was well known to the
contracting 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,
presents, and consideration, which o-
thenvise would have fallen u on Geor
gia. had she proceeded to the accom
plishment of the same object by pa
rr fa: means. But there is nothing in
1' is provision which prevents the Unit
ed States or Georgia from resorting
to force; on the contrary, this right
seems to be admitted, although the
United States would not bind them
selves to use it At all events it is
evident, that if Georgia possessed this
right bef re entering into those articles
site possesses it yet. for a surrender
of it is no where to he found. Before
Georgia became a party to 1 lie 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 made it the duty of the United
States to sustain 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
quence is that Georgia is left nntram-
melled and at full liberty to prcsecute
her rights in that ptvint of view, ac
cording to her own discretion, and ns
though no such contract had been
made. Your committee, therefore,
arrive at this conclusion: That ante
rior to the revolutionary war, the
lands in question belonged to Great
Britain; that the r ght of sovereignty
both as to domain and empire was com
plete and perfect in her; th t the
possession by the Indians was permis
sive: that they were under the pro
tection of that Government: that their
title was temporary; that they were
mere tenants at will: and that such
tenancy might have heen determined
at any moajent either by negotiation
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 biflance of her territo
ry," and that she is now at full liberty,
and has the power and right to pos
sess herself by any means she may
choose to employ of the lands in de
pute, and to extend over them her au
thority and lav\s.
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 pie; $es,
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 loity bear
ing, by the protection and 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 i hange
its polit y 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 subr
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 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 fhe aggregate one sixth
part of the whole territory—But. if
all this will not dd; 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 :—
Respired, 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 t 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
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.
Resolved. That all the lands appro
priated and unappropriated, which lie
within the conventional limits of Geor-
laws over her Whole territorWand to
coerce obedipnee to them from a ll de
scriptions of* people, be them white,
red or blacK, who inay reside within
her limits. 1 1
Resolved, That Georgia entartains
for the general government so high a
regard, and is so solicitous to do no act
that can disturb, o: tend to disturb the
public tranquility, that she will not
attempt to enforce her -rights by vio
lence, until all other means of redress
fail.
Resolved, That to avoid the catas
trophe Which none would more sin
cerely deplore than ourselves, we
make this solemn—this final—this last
appeal to the President of the United
States, that he take such steps os are.
risrial, and as he may deem expedient
and proper for the purpose of. and
preparatory to the holding of a treaty
with the Cherokee Indians, the ob-
ject^of which shall be, the extinguish
ment of their title to all or any part
of the lands now in their possession,
Within,the limits of Georgia.
Resolved. That if such treaty be
held, the President be respectfully re
quested to instruct the commissioners
to lay .a copy of this report before
file Indians ih convention, with such
’omments as may be considered just
and proper, upon the nature and extent
of the Georgia title to the lands i*
controversy, and the probable conse*
quences which will result from a con
tinued refusal upon the port of the
Indians to part with those lands. And
that the commissioners be also instruc
ted to grant, if they find it absolutely
necessary, reserves of land in favor of
individual Indians or inhabitants ofthe
nation, not exceeding one-sixth part of
the territory to be acquired, the same
to be subject to future purchase by
the Gen. Gov. for the use of Georgia.
Resolved. That his excellency the
Governor, be requested to forward
a copy of the foregoingReport & Reso
lutions to the President of the United
Stales, and one to our Senators ard
Representatives in Congress, with a
request, that they use their best exer
tions to obtain the objects therein ex
pressed.
gia, belong to her absolutely; that the
i—. Indians are
title is in her; that the
tenants at her will, and that 9he may
at any time she nleases. determine
that tennn'-y bv taking possession of
♦bo nr-Muises—r ^nd that Georgia b"s
the l ight to extend her authority and
INDIAN COUNCIL.
Mr. Penn, when lie first arrived itt
Pennsylvania, in the year 1683, and
made a. treaty with them, makes the
following observations, in a letter he
then wrote to his friends in England://
“ Every king has his council, and that
consists of all the old and wise me*
of his nation, which perhaps are tw*
hundred people. Nothing of moment
is undertaken, be it war, peace, sell
ing of land, or traffic, without advising-
ing with them. ’Tis admirable to
consider how powerful the chiefs are,
and yet how they move by the breath
of the people. I have had occasion
to be in council with them upon trea
ties for land, and to adjust the termsf
of trade. Their order is thus; the
king sits in the middle of an half rabort,
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 king
ordered one of them to speak to me.
He came to me, and in ; the name of 1
his king, saluted me. Then took me
by the band, and told me that be was
ordered by bis king gto'epeak to me;
and that mnv it was riot he, but the
king who spoke,, Because what he
should say was th# king’s mind. Du
ring the time this^person was speak'
them was observe/
e. The old ivert
reverend in ther
ey spoke little, bu
ith elegance. H
name of wise, wh<
out-wits th eng in any treaty about ^
thing they understand. At everjr
sentence they shout, and say amen, 9
their Way.”
Mr. Smith, in his history of N. Jen
sey. confirms this general statement
“ They are grave even to sadnes^
upon any Common, and more so upon
s—-observant of these
espectful to the la- (
1 and deliberate
speak, but WaL
it the person wlj«|
had finished af
y seemed to hoi
ing, not a man o:
to whisper or
grave—the y-
deportment
fervently anj
will deserve
?!
serious occas.
in company, t
ged—of a te
—never in has
for a certainty,
spake before
he had to say.
European vivacity in contempt, ba-j
cause they found such as came amoiis
them, apt to interrupt each other]
nnd frequently speak altogether
Their behaviour in public council]
was strictly decent and instructive]
Every one in his turd, was heard, acj
wording to rank of years or wisdom]
or services to his country. Nbt
g