- B R — -L. T s ’ e P LR
| PRINTED UNDER THE PATRONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOTED T 0 THE CAUSE OF INDIANE.eseE. EOUDINCTT, EDITCRG,
VOi., I,
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PHAUNIX,
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€Cherokee Pl nix,
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INDIANS.
HON. H. L. WHITE'S LETTER.
[ Concluded from our last.]
These considerations account for
the language used in the 2d article of
‘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 rvegu ate their
trade. Dy the 2d article, the Cher
okees had deprived themselves of all
poewer tomake any treaty with 2ny {or
eign sovereign, or State, or individ
uval. This power, thus given away
in the 2d article, it was essential
should be vcgted in some sovereign,
who would feel disposed to exercise
£t for their benefit, whenever the
proper time for its exercise should
“‘aviive; hence the language used in
2he 6th article. The power parted
with in the 2d is vested by the 6th
%n the United States. In the case of
the States, the language of the Con
stitution is, “Congress shall have
power to regulate commerce Wwith
foreign nations, and among the several
States, and with the Indian tribes.”
in the case of the Indians, the lan
guage in the treaty is “That thefUnit
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 regulaté 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 on with them; but as to
the internal trade,.to be carried on
within their own limits, it is as much
the subject of their own municipal
laws, as if the Cherokees- still re
NEW ECHOTA, WEDNESDAY JUNK 10, 1823,
} mained independent, to all intents and
l purposes. If it be true, as some
| suppose, that, in virtue of this 6th ar
i ticle in the treaty, Congress has pow
| er to make municipal laws for them,
{ and to regulate all their internal
ltrade, withia the body and heart of
the Cherokee nation, where is the
} necessity for an express stipulation
for the road from Washington to
Mero district, for the Kentucky road,
for the road to Georgia, for that to
Tombeckbe, and for the post road to
New Orleans? Where was the ne
cessity for the stipulation for the free
navigation of that part of the Tennes
see river which flows through the na
tion? Al these stipulations, made at
different times dnd in several trea
ties; were entirely ‘useless. If it be
true that the United States, in, vir
tue of this treaty stipulation, have not |
“only the power to regulate the trade ‘
within the nation, but also all their
(the Indians) affairs, where was the
necessity of those stipulations which
provide that white persons who may
2o within the nation, and there com
mit ctimes, may be brought out and
punishéd in the same mamner as if
they had committed the like crimes
upon or agalnst white persons within
the limits of the district where they
resided. The object of this provision
is important, and cannot be misunder
stood. The Cherokees were to be
considered as a nation; the bounds of
their territory were ascertained;
within those bounds they would have
all the rights of sovereignty not sur
rendered: if a white man \ent with
in their limits and committed a crime
or trespass, he would have been a
menable to the tribunals of the coun
try where the offence was committed,
and the nature of his crime, as well
as the measure of his puunishmeat,
wuld have been ascertained by the
municipal laws of the country in
which he had transgressed. Know
ing this. and being unwilling, on the
one hand, that a guilty citizen should
escape with impunity, and determia
ed, on the other, that the guilt or in
‘nocence of an American citzen should
‘not be ascertained by an Indian tribu
nal, nor should the nature of his crime |
or mzasure of his punishment be as
certained by an Indian Legislature,
this provision was inserted, - But if
an opinion different from mine be on
tertained; if it be truc that the Unit
ed States are clothed with the power
to regulate inlernal trade, and all
other affairs, and the Indians have no
power. to act o 1 these subjects; {hose
provisions were uanecessary. |
The Congress had mnothing to do
but pass an act, and the same object
woull be attained. The United
States, even as early as 1791, looked
forward to the time when the Chero
kees would become enlightened, when
they would become civilized, when
they would be capable of self-govern
ment, when they would be owners of
property real and personal, which
edch 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? ‘Fhe 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 commmauni
ties, consistent with the interest of
the United States. Without an in
ternal government of their own, they
must remain savages. A governiment
cannot be administered without mo
ney; without the power to impose a
tax, money cannot be collected.” In
selecting objects or subjects of taxa
tion, they have the sante range as any
‘one of the States. A tax upon mer
chants, upon pedlars, and upon haw
kers, is common in many, if not in all
the States. If the Cherokees have
the power to impose a tax upon any
thing within their limits, there is noth
ing in any treaty or statute which
prevents them from imposing 3 tax
i apon an Indian or Indian countryman
| settled and residing in the nation, anc
carrying on the business of tiade anc
merchandise, without any license from:
the United* Stanes; and if they ar
i prohibited from the exercise of this
power, it must be upon some princi
ple which would prohibit any one of
' the States likewise.
There now are, and have been for
years, resident merchdats in the na
tion, using capital sufficient for re
spectable retail stores almost any
where in the United States. They
neither have, nor is there any law
requiring that they should have, a
license to cnable them to vend their
goods. 'There.are many Indians and
ludian countrymen with good farms,
well stocked. Cannot these be tax—
ed? If they can, what is there to ex
empt the itinerant merchant, the haw
ker or pedlar, within the nation, with
a license from the” United States?
Was it the intention of the United
States to gite such person a privilege
over the resident Indian merchant? —
There 15 not one word in the treaty to
countenance such an idea. Under the
parental care of the I'ederal Govern
ment, the Cherokees have been m
a good degree reclaimed from their
savage state: under their patrovage
they have become enlightened; they
have acquired a taste for property of
their own, from the use of which they
can exclude all others. They have
acquired the property itsclf. There
must be laws to protect it, as well as
to protect those who own it. By
what community ought these laws to
be enmacted? Laws there bave al
ways been, and laws there must con
tinie to be, emanating from some
power capable of enacting them.
Where is that power? _ It must be in
Congress, or in the Cherokees. Con
gress has never exercised it, the
Cherokees always have. And if 1
have béen correctly iaformed, one ¢f
the Presidents of the United States,
to aid them, digasted a code of writ
ten laws, which he supposed suited 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 adoptsuch
of them as they thought adapted to
their situation. Afterwards, if lam
not mistaken, in a communication to
Congress, it was mentioned with
approbation that the Indiaus were
progressing in the good work of civi
lization, and assimilating their gov
errment to that of the United States?
I never heard that their power was
doubted. That this power had been
surrendered to the United States Ly
the words that ¢“Congress should have
the sole and exclusive right to regulate
their trade,”. or by the words *‘man
aging all their affairs in such masner
as they think proper,” if they cught
to be considered in force. 1 cannot
suppose it possible that in making
these treatics 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 heen cruel to divest the Indians
of the power,without at the same time
intending to use it for their benclit.
This power never has been used, that
I know of, perhaps could not be used,
by Congress, to advaitage. Of all
subjects that Congress could be called
to act upon, this would be the nost
difficult—to make a code of laws by
which the Cherckee nation should
manage all their internal afiairs. 1
cannot but believe that this 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
werc in possession of a district of
country, spread into several States;
they lived in many detached villages,
separated from each other, some of
f them by many miles, each village hav- |
ing its own peculiar cusloms. "This '
sountry is solemuly guarantied by this
wreaty to the Cherokee nation. Mu
iicipal laws to regulate its trade and
and all its affairs within those limits,
aie to ber made from time to time,
and those laws frequently to be chang
:d, so as to snit the.chbanging coa
. lition of those inhabitants, and there
oy premote their happiness and Com
l iort.. Is it probabie that the Ixecu
<ive of the United States, or his ne
gotiator, would/desire this power tok
en from the Andians and vested in
'Congress? Would the Indians be
'willmg to Arvansfer it? Weve Con
i gress to /be perpetually in session,
~without any other business to engage
their atlention, it is not probable they
could discharge such a trust to their
own satisfaction, or to the satisfac
“tion of an Indian community.
General Washington knew better
than to desire the transfer of sach a
potver to the United States; his ne- |
gotiator, acting uhder his speeial in
structions, knew bhetter; we ought
aot therefore to give to the theaties
such a construction &s wonld vest
such a power in Congress, if language
used can be fuirly satisfied withont
doing so., It seems to me this can be
done. “Congress shall have the sole
and exclusive power to regulate their
trade.” By the words sale and cxchi
sive, we exclude all other sovéreigus
from acting upon the subject. Reg- [
ulating *‘their trade:” these words fix |
the subject to be regulated; that is, t
their trade: the trade of the Indian |
nation as a nation; not the trade bo- |
tween A and B within the pation. Ia
other words, Congress alone is to
have the power of regulating the
trade of the Indian with eli" olher |
sovereigns. . Each Staté was once
sovereign; each bad the power to'
regulate its commerce with oibery
sovereigns. By the Consiitution 0(,
the United States, Cengress is vest- |
cd with the power to regulate com- \
merce with foreign nations, and a- |
wong the States, and with the ' ludion |
tribes. . What power have the“ States |
losi? The powerto regulate com-*
merce with foreign nations, and among
each other; but neither bas lest the |
power to regulate transactions be
tween A and B withia its own hmits,
The Indian nation must some timé
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 other nations,
will require money to support it.
Fhere is ng stipulation i any trealy
ihat Coigress shall defray this e:‘-{
pense¢ out of the comion fund. Is
Congress by the treaties to impose |
a tax upon the Indians? The Amer
ican Government never has advocat
ed the doctrine that taxes can be im
-posed by a body, where the people
‘ taxed aré unrepresented. The Con
stitution of the United Stafes prohibits
an enumeration of the Indians for the
purposes of representation; they are
therefore unrepresented in Congress.
If we suppose the treaty of 1785 in
force, and add to the words ‘‘regu
late their trade” *and all their affairs,”
it will not aid the other side of the
question. Immediately it will be
“asked, with whom? I answer, with
foreign nations. As a nation, they
have much to transact with the
‘ United States, or with other nations,
‘Lwhich does not relate to the regula
tion of trade, the fixing boundaries,
!trealine; with other Indians, &c.
The affairs then which they have to
rlransaci with other powers, the Unit
cd States have the power to manage
for them; but not to manage affairs
whieh relate to the rélative duties of
'Aindividual Indians to each oth~r, with
-in their own territory, nor to the duo
tias which individuals of the Indian |
commurity owe to the Cherokee na
tion. o soon as the Indian natiun had
‘existence as a community, there was
a power scme where {¢ make munici-
pal regulations for the government of
that comatanity, and among those
powers one tolevy and coilect taxesy
that power sili exists somé where; I
think it is. not ené of those powers
trausferred to the United States: it
must therefore remuin with the Che
rokee nation. I wiil now inquire
whether there is any 'thing in the trea
ties which will éxcmpt the merchant
having a permit from the United
States, and veading his merchandize,
by retail, witlun the nation, fromi a
tex. By the Sth article of the tieaty
of Holston, it is provided, “that ne
citizen or inhabitamt of the United
States shall attempt to huat or des
stroy the game. on the lands of the
Cheroktes; nor shall any citizen or
inhabitant go into the Cherckee country
withoat a passport first obtained,&c.
B) the 14th ariicle, it e provided
that the United States will send a
nuniber of persons, not exceeding four,
to reside in the country, who ¢half
qualify themselves {o act as .inter~
preters: these persons. chall have
lands assigned them by the Cherokoes*
for cultivation, for tliemselves ond
their successors in cffice, but they
shall be preeluded [rom exercising any
kind of traffick. 'These &rticles are (e’
only ones to be found, which speak of
a passport, or p(:rmissio:l to go intd
the nation. B
Fhe chject of the provision in this
9th article, if appears to me. is very’
obvious: itis to preserve pecace witly
the Indizns. If all deseriptions of per
sons were permitted {o enter the na?
tion, this could not be dowe; disery
derly ‘immoral persons would make
their way info the nation, practice
fravd upon the Indians, and-a war
might be the consequence. Ilence
ithe s‘.ij)u}a(ion that ©io ‘white person
siall ebterthe nation without s pessport
from the Government: but 1t is rot
said thawhis passport shall confer auy.
other privilege upon Lim, Lut that of
excusing him from being considered-as
a trespasser, a persen that is cutlaw od
by his own Government, as one thaf
the Indiavs may punish or net, as they
choose. Befsre he obtains the permiss
sion'to go, he must satisfy lis owst
Government as to the business upen
which he wishes to enter the nation;
and if the Government believes lie
can be safely trusted among the In
dians, the oflicer gives him a peimis
sion toenter the nation, and in thet
permission spegifies the business upen
which he goes. It is a docnuent
furdished’ him to ‘satis{} the Chero
kees that the individual named in it
has the consent of his ewn Govern
ment to go into their country, for the
purpose of trading with them; there
1s not stipulation that he shall, in coy
respect, be entitled to a privilege, ag
to his traffick, which their own peo¥
ple do not enjoy. The exemption
claimed would give the man who
holds the passport the right of vend+
ing bis merchandize upon better terms
than the resident merchant. This
surely never was intended. Tt cau
not fairly be argued that this paper
is given in virtue of the power to regy
ulate trade. If so, and Congress are
to regulate thewr internal trade, how
comes it that no license has ever
heen required for the resident mer+
chant? Tor years, Indian and Indiai
countrymen have vended geods in their
own country, without any such in
strument: byt the American citizen
who Tvishes to go into the pation for
this or any other purpose, and does
not wish to expntri‘ale himself, must
obtain tlie consent of his Government;
and tlis written consent very naturd
ally expresses the business which he
intends to followw while there. The
Government derives no revenue from
these passports: and is an exclusive
privilege to be granted without an exv
press stipulation in the treaty to aus
thorize it ? T think it never was s
tended. If the Cherokcees -are to be
considered as a nation, they must
have power (o impose taxes and
make other municipal l'egul\tians for ᏣᎳᎩ ᏧᎴᎯᏌᏅᎯ ᎯᎠ ᏂᎦᎥᏧᎬᏩᎶᏗ.
ᏑᎧᎪᏓᏆᏍᏗ ᎢᎪᎯᏛ ᏌᎹ” ᏧᏂᎴᏴᏁᏗ ᎨᏎᏍᏗ,
ᏴᏫᏁᎬ ᏗᏂᏬᏂᏘᏍᎩ ᏦᎢᏁ ᎠᏰᏢ ᎤᏮᎫᏴᏗ
ᏥᏎᏍᏗ ᎢᏳᏃ ᎢᎬᏪᏅᏛ ᎠᏮᎾᎫᏱᏍᎨᏍᏗ.
ᎢᏳᏃ ᏑᏓᏢ ᎢᏯᏅᎪ ᎢᏴ ᎠᎾᎫᏱᏍᎨᏍᏗ) ᏦᎢ
ᎠᏐᎸ ᎤᎾᎫᏴᏗ ᎨᏎᏍᏗ. ᎠᏕᏘᏱᏍᎬᏃ ᎢᏴ ᎩᎳ
ᎠᎾᎫᏱᏍᎨᏍᏘ, Ꮕ.ᎩᏁᎢ ᎠᏰᏢ ᎤᎾᎫᏴᏗ ᎨᏎᏍᏗ.
ᏣᎳᎩᏃ ᎤᏩᏒ ᏗᏂᏬᏂᏘᏍᎩ; ᏔᎵᏢᏉ ᎠᎨᎸ
“ᎤᎾᎫᏴᏗ ᎨᎬᏎᏍᏗ ᏬᎧᏕᏘᏴᏛ, ᎢᏳᏃ ᎢᎬᏪᏅᏛ ᎠᏮ”
ᏌᏱᏍᏑᏍᏗ. ᏦᎢᏁᏃ ᎠᏰᏢ ᎾᏍᎩᏉ ᎤᏕᏘᏴ”
ᎵᏘᎡ. ᎠᎾᎫᏱᏍᏢᏬᏍᏗ. ;
