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Cherokee phoenix. (New Echota [Ga.]) 1828-1829, March 06, 1828, Image 2

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w f ft. 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