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CHEROKEE PH<EN!X, AND INDIANS’ ADVOCATE.
PRINTED UNDER THE PAlBONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO THE CAUSE OF INDIANS.—E. LCLDINOTT, JiDlTcH.
VOL. II*
NEW ECU OTA, WEDNESDAY JUNE 10,1829.
NO. 10.
PRINTED VVEE8U BY
JOHN F. IVIIEELER,
At $2 50 if paid in advance, $3 in six
months, or $3 50 if paid at the end of the
year.
To subscribers who can read only the
Cherokee language the price will be $2,00
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year,
Every subscription will be considered as
^continued unnless subscribers give nnticeto
the Contrary before the commencement of a
new year,and all arearages paid.
Any person procuring six subscribers,
'and becoming responsible for the payment,
shall receive a seventh gratis.
Advertisements will be inserted at seven-
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tion, and thirty-seven and a half cents fo.
each continuance; longer, ones in propor
tion.
IdJ**.Vll letters addressed to the Editor,
post paid, will receive due attention.
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AGENTS FOR 'I HE CHEROKEE
PHOENIX.
The following persons arc 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, Ya.
Rev. James Campbell, Beaufort, S. C
William Moultrie Reid, Charleston,
3. C.
Col, George Smith, Statesville, W. T.
William M. Combs, Nashville Ten.
Rev. Bennet Roperts—Powal Me.
Mr. Trios* 11. Gold^(.ui itinerant Gen
tleman.)
JeremiaH Austil, Mobile Ala.
Rev. C yrus Kingsbury, Mayhcw, Choc
taw Nation.
Capt. William Robertson, Augusta,
Georgia.
Col. James Turk Bellfonte, Ala.
INffi/iMS.
IION. H. L. WHITE'S LETTER.
[Concluded from our last.]
These considerations account for
the language used in the 2d article ot
the treaty of Holston, and enable us
pretty clearly to discover the import
of the words in the 6th article—sole
and exclusive power to fegu ate their -
trade. By the 2d article, the Cher-
ckees had deprived themselves of all
power to make any treaty with any foi-
eign sovereign, or State, or individ
ual. This power, thus given away
in the 2d article, it wn9 essential
ehould be vested in dome sovereign,
who would feel disposed to exercise
it for their benefit, whenever the
proper time for its exercise should
arrive; hence the language U9ed in
the 6th article. The power parted
with in the 2d is vested by the 6tli
in the United States. In the case of
the States, the language of the Con
stitution is, “Congress shall have
f lower to regulate commerce with
oreign nations, and among the general
Slates, and with the Indian tribes.”
In the case of the Indians, the lan
guage in tho treaty is “That the[Unit-
ed States shall have the sole and ex
clusive right to regulate their trade.”
In each case, as I think, the same
idea is communicated; in each a
power is given to regulate their ex
ternal trade; and in neither is a pow
er given to make municipal laws for
them. They may regulate the trade
or commerce which other States or
nations carry oh with them-, but as to
the internal trade, lo he carried on
within their own limits, it is as much
the subject of their own municipal
raws, as if the Cherokees still re
mained independent, to all intents and
purposes. If it tie true, as some
suppose, that, in virtue of lliis 6th ar
ticle in the treaty, Congress has pow
er to make municipal laws for them,
and to regulate all their interna'
trade, within the body and heart o,-
the Cherokee nation, where is tin
necessity for an express stipulation
for the road from Washington to
iviero district, for the Kentucky road
for the road to Georgia, for that U
Tombeckbe, and for the post road to
New Orleans? Where was the ne
cessity lor the stipulation for the free
n wigation of fhat part of the Tenncs
see river which ltow3 through the na
tion? All these stipulations, made at
different times and in several trea
ties, were entirely useless. If it be
true that the United Stales, in vir
tue of this treaty stipulation, have not
only the power to regulate the trade
within the nation, but also all their
((he Indians) affairs, where was the
necessity of those stipulations which
provide that white persons who may
go within the nation, and (here com
mit crimes, may he brought out and j
punished in the same in inner as if
they had committed the like crimes -
upon or against white persons within
the limits of tho district where they
resided. The object of this provision
is important, and cannot be misunder
stood The Cherokees were To he
considered as a nation; the hounds of
their territory were ascertained;
within those hounds they would have
all the rights of sovereignty not sur
rendered: if a white man went with
in their limits and committed a crime
or trespass, ho would have been a-
munable to the tribunals of the coun
try where the o(fence Was committed,
and the nature of his crime, as well
as the measure of his punishment,
w uld have been ascertained by the
municipal laws of the country in
which he hod transgressed. Know
ing this, and being unwilling, on the
one hand, that a guilty citizen should
escape with impunity, and determin
ed, oil the other, that the guilt or in
nocence of an American citzen should
not he ascertained by an Indian tribu
nal, nor should the nature of his crime
or measure of his punishment he as
certained by an Indian Legislature,
this provision was inserted. But if
an opityon different from mine ho en
tertained; if it he true that the Unit
ed States are clothed with the power
to regulate internal trade, and all
other affairs, and the Indians have no
power to act on these subjects; these
provisions were unnecessary.
The Congress had nothing to do
but pass an act, and the same object
would be attained. The United
States, even as early as 1791, looked
forward to the time when the Chero-
kces would become enlightened, when
they wodld become civilized, when
they would he capable of self-govern
ment, when they would be owners of
properly real and personal, which
each individual within the nation, who
might be the owner of it, would be
desirious of having secured to his ex
clusive use. How were these objects
to be attained? The stipulations of
the treaty of that year answer the
question—by giving them a perma
nent interest in the country; by leav
ing them in the possession of all the
powers of other independent commiriuni'
ties, Consistent with the interest of
the United States. Without an in
ternal government of their own, they
must remain savages. A government
cannot he administered without mo
ney; without the power to impose a
tax, money cannot he collected. In
selecting objects or subjects of taxa
tion, they have the sam'c range as any
one ofthe States. A tax upon mer
chants. upon pedlars, and hpon haw
kers. is common in many, if not in all
the States. If the Cherokees have
the power to impose a tnx upon any
thing within their limits, there is noth
ing in any treaty or statute which
prevents them from Imposing a tax
upon an Indian or Indian countryman,
settled and residing in the nation, atu.
carrying on the business of trade ano
merchandise, without any license from
the United Stancs; and if they art-
prohibited from the exorcise of this .
power, it must be upon some prinai- j
pie which would prohibit any one oi t
ihc Slates likewise.
There now arc, and have been foi ,
years, resident merchants in tho na
tion, using capital sufficient for re
spectable retail stores almost any
where in the United States. They
neither have, nor is there any 1.1\\
requiring that they should have,' a
license to enable them to vend their
goods. There arc many Indians and
Indian countrymen with good farms
well stocked. Cannot these he tax
ed? If they can, what is there to ex
empt the itinerant mcrclrant, the haw
ker or pedlar, within the nation, with
a license from the United States? ■’
Was it the intention of the United
States to give such person a privilege
over the resident Indian merchant? —
There is not one word in the treaty lo
countenance such an idea. Under the
parental care of the Federal Govern
ment, the Cherokees have been in
a good degree reclaimed from their
savage state: under their patronage ■
they have become enlightened; they
have acquired a taste for properly ol
their own, from the use of which they
can exclude all others. They ha\e
acquired the property itself. There
must be laws to protect it, as well as
to protect those who own it. By
what community ought these laws to
he enacted? Laws there have al
ways been, and laws there must con
tinue to he, emanating from some
power capable of enacting them.
Where is that power? It must he in
Congress, or in the Cherokees. Con
gress has never exercised it, the
Cherokees always have. And if 1
have been correctly informed, one of
the Presidents {if the United States,
to aid them, digested a code of writ
ten laws, which lie supposed sailed to
their society, sent it to them with his
recommendation that they would a-
dopt them. The nation gave them a
candid examination,and did adopt such
of them as they thought adapted to
their situation. Afterwards, if I ain
not mistaken, in a communication to
Congress, it was mentioned with
approbation that the Indians were
progressing in the good work of civi
lization, and assimilating their gov
ernment to that of the United States.
I never heard that their power was
doubted. That this power had been
surrendered to the United States by
the words that “Congress should have
the sole and exclusive right to regulate I
their trade,” or by the words “man
aging all their affairs in such manner
as they think proner, ,} if they ought
to be considered in force. 1 cannot
suppose it possible that in making
these treaties the United States ci
ther wished of intended to take from
the Indians the power of making mu
nicipal laws. If they did, it must
have been with a view to vest the
same powers in Congress. It would
have been cruel to divest the Indians
of the power,without at the same time
intending to use it for their benefit.
This power never lias been used, that
I know of, perhaps could not be used,
by Congress, to advantage. Of all
subjects that Congress could he called
to act upon, this would be the most
difficult—to make a code of laws by
which the Cherokee nation should
manage all their internal affairs. I
cannot hut believe that (his is pow
er most fit to be exercised by the
Cherokees themselves, and that such
was the opinion of those who framed
the treaties; and, therefore, they
were left in possession of, it. At the
time this treaty was framed, and
this language used, the Cherokees
were in possession of a district of
country, spread iuto several States;
they lived in many detached villages,
separated from each other, tome of
lliem by many miles, each village hav
ing ils own peculiar customs. This
country is solemnly guarantied by this
treaty to the Cherokee nation. Mu
nicipal laws to regulate ils trade and
and all its affairs within those limits,
•ire to he made from time to time,
ind those laws frequently lo he chang
'd, so as to suit the changing eou-
iition of those inhabitants, and there
by promote their happiness and com
fort. Is it probable that (he Execu
tive of the United Stales, or his ne
gotiator, would desire this power tak
en from tho Indians and vested in
Congress? Would (he Indians he
willnig to transfer it? Were Con
gress lo he perpetually in session,
v it lion t any other business to engage
.heir attention, il is not probable they
could discharge such a trust to their
nvn satisfaction, or to the salisfac-
ion of an Indian community.
General Washington knew better
than lo desire the transfer of stu b a
power lo the United States; his ne
gotiator, acting under his special in
structions, knew better; we ought
not therefore to give to the treaties
such a construction as would vest
such a power in Congress, if language
used can be fairly satisfied without
doing so. It Seems to me this can be
done. “Congress shall have (lie sole
and exclusive power to regulate their
t-adc.” I>y lbe words sole and exclu
sive, we exclude all other sovereigns
from acting upon the subject. Jtog-
tilaling "their trade:” these words lix
(he subject to be regulated; that is,
their trade: the trade of tbe Indian
nation ns a nation; not the trade be
tween A and B within the nation. In
other words, Congress alone is to
have the power of regulating the
trade of the Indian with all other
sovereigns. Each Slate was oitce
sovereign; each hail the power to
regulate its commerce with other
sovereigns. By tho Constitution of
the United Slates, Congress is vest
ed with the power to regulate com
merce with foreign nations, and a-
inong the States and with the Indian
tribes. What power have the States
lost? Tho power to regulate com
merce with foreign nations, and among
each'other; but neither lias lost the
power to regulate transactions be
tween A and B within its own limits.
The Indian nation must some time
have a government to regulate the in
ternal concerns of the nation; indeed
they have always had one: as they be
come enlightened and civilized, this
government, like that of oilier nr.tions,
will require money to support it.
There is no stipulation in any treaty
that Congress shall defray this ex
pense out of the common fund. Is
Congress by the treaties to impose
a tax upon the Indians? The Amer
ican Government never lias advocat
ed the doctrine that taxes can bo im
posed by a body, where the people
taxed arc unrepresented. The Con
stitution of tbe United States prohibits
an enumeration ofthe Indians for the
purposes of representation; they are
therefore unrepresented in Congress.
If we suppose the treaty of ’7S5 in
force, and add to the words “regu
late their t rade”“«iul all their affairs,”
it will net aid the oilier side of the
question. Immediately it will be
asked, with whom? I answer, with
foreign nation*. As a nation, they
have much to transact with tbe
United States, or with other nations,
which does not relate lo the i emula
tion of trade, the fixing boundaries,
treating with other Indians, &.c.
The affairs then which they have to
transact with other powers, the Unit
ed States have the power to manage
for them; but not to manage affairs
which relate to the iclativc duties of
individual Indians to each other, with
in their own territory, nor to the du
ties which individuals of the Indian
community owe to the Cherokee na
tion. So soon as the Indian nation had
existence as a community, there was
a power some where to make mimici-
{
i
pal regulations for the' government ol*
that community, and unrong • those"
powers one to levy and collect taxes;
that power siiil exists some where; i
think it is not one ol' loose powers'
transferred to the United States: it
must therefore remain with the Che
rokee nation. I will now inquire
whether 1 hern is a:iv thing in the trea
ties which will exi innt the merchant
having a pzrmil from the United
States, and vending his merchandize,
by retail, within the nation, from a
lax. By the 9th art it |<; of the treaty
of Holston, it is provided, “that no’
citizen or inhabitant of the United
States shall attempt to hunt or dcs-
stroy the game on the lands of tho
Cherokees; nor shall any citizen or
inhabitant go into the Cherokee country
without a passport first obtained.&r.
By the Ultli article, it is provided
tiial tho United Slates will send a
number of persons, not exceeding four
to reside in tho country, who shall
quality themselves to act as inter
preters: these persons' shall have
lands assigned them by the Ckerokoc#'
for cultivation, for themselves and
tiie:r successors in office, but tiny
shall be precluded from exercising any
kind of Irafjick. Thesearti les aic the
only ones to ho found, which speak of
a passport, or permission to go ink*
the nation.
Tiie older I of the provision in this
DtIt article, it Appears to me is very
obvious: it is to preserve peace with
the Indians. If all descriptions of per-
sons were permitted th enter the. na
tion, this could not bo diiiie; disor
derly immoral persons would make
their way inio (lie nation, practice'
fraud upon tho Indians, and a war
might be the rousequen, e Heine
Ihc stipulation that no white person
shall enter the nation without a pr ssnoif
from the Government: but ir is i;ot
said that bis passport shall cdr.for any
oilier privilege Upon him; but that of
excusing him from being considered as
a trespasser, a person that' is outlawed
by bis own Government, as one that
the Indians may punish or not, as they
choose. Before he obtains thepermis-*
sion to go, be must satisfy bis own'
Government as to the business npctf
which bo wishes to enter the nation)
and if the Government believes b<?
can be safely trusted among the In
dians, the officer gives him a pei mis
sion to enter the nation, aitil in that
permission specifics tho business upon
which be goes. It is a document
furnished him to satisfy the Che.ro-'
keosthat the individual tunned in it
lias the consent of his own Govern*
merit to go into their country, for tlui
purpose of trading with them; there
is no- stipulation that he shall, in any
respect, be entitled to a privilege, ai
lo bis traffuk, which their own pcov
pie do not enjoy. The exemption
claimed would give the man who
holds (he passport the right of vend
ing his merchandize upon better terms
than the resident merchant.' This
surely never was intended. It can
not fairly lie argued that this paper
is given in virtue of the power to ieg-
ulate trade. If so, and Congress are
to regulate then' internal trade, lion'
comes it that no license has ever
been required for (lie resident mer
chant? For years, Indians and In lino
countrymen have vended goods in their
Wn country, without any . such in
strument: but the American citizen'
who wishes to go into the nation for
this or any other purpose, and does
not wish to expatriate himself, must
obtain (lie consent of bis Government;
and this written consent very nature-
ally expressrs the business which be
intends to follow* while there. The
Government derives no revenue from
those passports: and is an exclusive
privilege to be granted without an ex-*
press stipulation in the treaty to au
thorize it ? I thhk it never was ni
ton led. If thd ClVprokees arc to Lo*
considered as a- nation, they must
have power to impose taxes -nwt-
tnrjcc olkeii trurivipal regulations' Colt
V
