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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/
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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
