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CHEROKEE: PIHENIX, A \ I> ISDIAAS’ ADVOCATE*
PAINTED UNDER THE PATRONAGE, AND FOR THE BENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO THE CAUSE OF IKDIANSa-E. CCt’DlNOTT, liIHTt'14.
. '■■■!■-.■ I - I - "~T ' 1 "" " J-UEOgMigg
vnt. ii.
T'liviii ■■
NEW EOHOTA, WEDNESDAY OCTOBER 14,1828.
NO. 27.
pp.iNirr weeeLy by
JOHN y WHEELER,
wu At t* 50 if paid in advance, $3 tft six
taontbs, or #3 50 if paid at the end of the
•year. *
\X To subscribers who can rea/i.^oillv thc
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continued unless subscriber* give notice to
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shall receive a seventh gratis.
Advertisements yill be inserted at seven-
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tion.
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post paid, will receive due attention.
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AGENTS FOR THE CHEROKEE
rHCENIX.
The following persons are authorized to
reeeivt subscriptions And payments for 11
Cherokee Phasnii. ■
Messrs. Peirce Sl Williams, No. 20
'Market St Boston, Mass.
George M. Tract, Agent of the A. B
CJ, F\ M. New York,
. -m*rf '^rfs^.'O. VTSov, c^imtn.i^owt »** &■
such a session and agreement are not
a treaty. Accordingly such a nego
tiations are carried on and completed
by virtue of laws of the National and
State Legislatures. Of course, com
pacts of this kind are never callpd
treaties : amlitho idea of sending them
to the Senatji of the United . States
for ratification Would be preposterous.
One of tho confederated Stale* is not
ao independent community; nor can it
make a treaty, either with the nation
at large, or with any foreign Power.
But the isdinn tribe** and nations have
made treaties with the United States
during tHe last forty years, till the
whole number of treaties thus made
far excepdB a hundred, every one of
which \fas ratified by the Senate be
fore it/became oBligatOry. Every
instance of this kind implies that the
Indian contmunilie* had governments
of their own) that the fiidiarts, thus
living irl communities, were not sub
ject t/> the laws of .the United Stoles;
and tfey had rights Olid interests dis
tinct Troirt the rights aitd intfiTsts of
the people of the United State*, and
in tne fullest sense, public and nation
al. | All this is in accordance with
fairs; and the whole is implied in the
single word treaty.
Again; the parlies on the hanks of
tUc Ilolston signed a treaty “0/peace.”
It is matter of history that there had
been fighting and bloodshed. These
acts of violence were not denominat
ed a riot, a sedition, a rebellion; they
constituted a tear. The settlement
of the difficulty was not called a par
don, an amnertv. a suppression of a liot,
aconviction, a punishment; it was call-
djonest man, Aryl by every fair miuded
and honorable ruler?
But, abovp all, the objection comes
too late. The United Slates are, as
a lawyer would.say, estopped. Gen
eral Vvashitigtpu, ivith his Cabinet and
the Senate, npi^nounced the Cher-
okeea tu be a nation. It does not ap
pear that a doubt ever crossed the
mind of a single individual, for nearly
forty years, whether this admission
were not perfectly correct. Presi
dent Adams (the elder,) Jefferson,
Madison, and Monroe, all admitted
the Cherokees to be a nation, and
treated with them os such. The
Secretary of War, (now Vice-Presi
dent of the United States) negotiated
the last treaty with the Cherokees.
and affixed his signature to it. In this
treaty, os in every preceding one, the
Cherokees are admitted to be a nation,
and there is not a word in any of these
solemn instruments, which has the
most distant implication of the con
trary. If the United States are not
bound in this ease, how is it possible
that a party should ever be bound by
its own admissions? The truth is,
that if our country were bound to
France, or England, by any stipula
tion, however mortifying td our pride,
or disadvantageous toour interest* olid
the meaning of the obnoxious clause
were supported by one-fiftieth part of
the evidence by which it enn be prov
ed that the United States have recog
nized the national character of the Cher
okees, no Statesman would risk his
reputation by attempting to dispute
or evade Ihe meaning. IV e should
be obliged to submit to inconvenien
ces resulting from our own stipula-
*'f IIOSAS Hastihqs, Utica, N. Y -
Pollard fc Converse, Richmond, Va.
Rcv!!jamm Campbell, B -aufort. S. C.
WilLiaM Moultrie Reid, Charleston,
•Col. Geobob Smith, Statesv.lle. W T.
William M. Combs, Nashville, Ten.
Rev. Behket Roberts, Powal, Me.
Mr. Tiios. R. ?old, (an itinerant Gen
tleman.) , .. ... ..
Jeremiah Auwil, Mobile, Ala.
Rev. Cyrus KjkosnuRT, May hew, Ghoc-
taw Nation.
Capt. WjllM Robebtsox, Augusta,
Georgia.
Col. Jam w
jbk, Bellefonte, Ala.
DAIN8.
jci* From tti National Intelligencer
TRF.SENT ell*!* IN THE CONDITION OF
Tti? AMERICAN INDIANS.—NO. V.
Having'lescribed the maltner
which the first Indian treaty, after the
organlzatiw of our present form ot
Govcrnincflt, was negotiated by the
Cabinet ol President Washington, and
shown tha it was ratified by Senator*
shown lha T . ■ ,
not inferior to any of their successors,
land who/were doubtless peculiarly
and who/ p> , ,
[cautious (in the first exercise of the
treaty-making power, arid having as-
[cortaincd by a minute comparison,
IHat the important articles of tbe trea
• of rtolslod, executed less than a
jar afterwards, are a mere trans-
ript of the first treaty, I proceed
jw to inquire, ffhat is the meaning of
cd a peace. Nor is it said here, as in ^ .
the tfeaty of Hopewell,1fiat the Unit- ! tTons, till we could remove them by
ed States “arte pence.” There is, in subsequent negotiations. If we have
the title and preamble, every indica
tion of perfect equality between the
parties. In point of fact, the whiles
were, at that moment, much more
desirous of pence than the Cherokees
were.
This is also.a treaty of “friendship
which implies, that the Cherokees
were not only a substantive power,
capable of making peace ami declaring
war, hut that, after the treaty was
executed, they were expected to re
main in the same state, it w as not a
surrendry of their national existence,
but the establishment pf amicable re
lations to maintain and, so far as (his
treaty could operate, the amicable
relations, thuk acknow ledged no exist,
been ovcrreoched'by the Cherokees in
so many successive treaties: if they
have had the adroitness to get Irom us
repeated acknowledgments of their
possessing a character and rights
which they did not possess: if Gene
ral Washington, and a long line 0! dis
tinguished Statesmen, have made in
cautious admissions; and if, in this
way, we have made a bargain which
bears hard upon Ourselves—still, our
hands and seals testify against us.—
We must he more cautious the next
time. “He that sweareth to his own
hurt, and chr.ngetli not,’ is declared
in Holy Writ to give one proof that lie
is an upi ighl man, and will receive
the apprpbatioil of God. In a word,
were to continue through all future i if Washington and Knox, Hamilton
l\ me , j and Jefferson, eompfcomited the inter
Who are the partios to this “trec/i/ : est of this country, by indiscreet nod
of peace and friendship?” The Presi*-
treaty of Ilolstori?
ThR title
and preamble were quo
ta nty !a*t number. The title
thus: u Jl treaty of peace and
dp.” What is a treaty? It is
act between independent coin-
ji, each party acting through
jnedium of its Government. No
uioent which does not come with-
definition, can b« »ont to the
o of the United States, to be
upon as within tire acope of tlic
-olaking power.
agent* of the United State*
land ft# a public object
xchnse is fiot a treaty.
Stale of Virginia, on the np-
„ of tite United State*, cede*
of land for a Navy Yard, or a
compact of this sort is not a
If the State of Georgia
the United States ill it! ter
enough for two ItfrgU Row
i the United State* agree
a compmmtlue therefor,
dent acts in behalf of one of the par
ties, and ‘Hhc undersigned chiefs aud
w arriors of the Cherokee Nation of
Indians, on the part and behalf rf said
Nation. The Cherokees then are a
nation; and the best definition of a
nation is, that It is A community living
under its otrn lairs.
A notion may be n power of the
first, second, third, or tenth rate. Jt
may be very feeble, and totally in
competent to defend it* own rights.
But so long jUB it has distinct rights
and intere*ts, and manages its dtvn
concerns, it is a snbsUuUive pow'er;
and should be respected as such. A-
ny other rule of interpretation would
mako force the only arbiter. St.
Mariuo, in Italy, is described in our
best gazetteers as “a small but inde
pendent republic;” and yet it has got
not half so many people, nor tbe three
hundredth part so much land, as the
Cherokee nation wow has.
It has been said, indeed, that the
Indians, being an uncivilized people,
arc not to be ranked among nations.—
But this is said - gratuitously, and
without the least shadow of proof.-*-
How many treaties did Julius Cmsar
make with Savage tribes, who were
greatly inferior, in every intellectual
ami moral respect, to .the Cherokee*
of the preaent day? There. 14 a* lit
thoughtless negotiations, we must gain
wisdom by experience, and appoint
more faithful and more considerate
public agents liereafter.
Having inquired into the meaning
of the title and preamble of the treaty
of Holst011, let me now direct the at
tention of the reader to its provisions:
“Art. I. There shall he perpetu
al peace and friendship between all
the citizens of the United States of
America, and all the individuals com
posing the whole Cherokee nation ot
Indians/*
If the*‘peace and friendship” were
Has not God endowed every commu
nity with some rights? »nd not
those rights to be. regarded by ,f»f«ry
to be “perpetual,” the future contin
uance of the “CherpUce nation of In
dian*” fnr an indefinite period, was
taken to be a mailer beyond all ques
tion. It seems clear, also, that “In
dians” enn constitute a “nation.”—
The w'ord trike, when used to denote
community living under Us own latcs, is
of equal force with the word nation;
and in this sense it i* to be taken,
wherever it occurs in the preceding
discussion. But.tho Cborokeo nation
|iad heen divided from time immemo
rial, into sdybri claps, sometime* cnll-
ed tribes, and tlm Choctaw nation jnto
two such tribes. This fact occasion
ed some of the peculiar phraseology
in the treaty of Hopewell. A* the
seven clan*, or tribe* iff tbe Chero
kee* were united udder one gorern-
ston. Tbe word natiou, as applicable
to the Cherokees, occurs no less than
tweilty-Sevcn times, aud always iu its
targe and proper sense.
Art. 2. The undersigned chiefs
afid warriors, for themselves and all
parts of tbe Cherokee nation, do ac
knowledge themselves and the said
Cherokee nation, to be under tho
protection of the United Stales of A-
merica; and of no other sovereign
whatsoever; and they also stipulate
that the said Cherokee nation will not
hold any treaty with any foreign pow
er, individual State, or with individu
als of any State.”
I remarked upon the treaty ol
Hopewell, that it has always been a
common thing for weak States to re
ly upon the protection of stronger
ones. When a weak State acknow
ledges a superior, it is bound in good
aith to act in accordance with that
acknowledgement; but it is, in aii
other respects, independent ol the su
perior. In other words, it retains all
the rights, which it does not port with.
What is to be understood by the
Cherokees being under tbe protection
of the United States, w ill very lull)
appear in the course of this investiga
tion. In the very article now under
review, the Cherokees bind them-,
selves not to hold any treaty “with
any foreign power,” nor with any “in
dividual Stale.” This was a very
material relinquishment of their natu
ral rights; hut it was supposed to be
counter-balanced by various advanta
ges secured to them by the treaty,
particularly by the solemn guarantee
in the seventh article, ivliich will be
considered in its order.
It is now contended by the states
men of Georgia, that the United
States had no power to make treaties
with Indians “living,” as they express
it, “within the limits of a sovereign and
independent state.” Thus accfaroing to
the present doctrine, Gencial Wash
ington and his advisers made a sult-mu
compact, which they called a treaty,
with certain Indians, whom they cull
ed the Cherokee nation. In tlii* coni*
pact, the United States bound the
Cherokees not to treat with Georgia.
Forty years have elupsed without any
complaint on the part of Georgia, in
regard to this exercise of the treaty-
making power; but it is now fouud
that the Cherekees are tci'ianls at will
of Georgia; that Georgia is the only
power on earth that eould treat with
the Cheiokocs; and that they must
now be delivered over to hef discre
lion. The United States then, at the
very commencement of oor Federal
Government, hound the Cherokee*
hand and foot, r.Hd have held them
bound nearly forty years, and have
thus prevented their making terms
with Georgia, which might doubtless
have been easily done at the lime of
the treaty of HoWton. Now it is dis
covered, forsooth, that the United
States had no power to bind them at all.
If such an interpretation is to be cn
dured by an enlightened people in the
nineteenth century, and if in conse
quence of it, tbe Cherokees arc lobe
dellveredjovcr, bound and manacled
cl in'its operations, cannot be adiniU
ted. Washington wa* neither a usurp*
er of unconstitutional power, nor iff
intriguing oppressor; rior were Ells*
worth and his fellow Senator*, eithel^’
novices or Cheats:
WILLIAM PENN.
no. Ft*
I proceed - *11' the consideration' at
the treaty of lioiston. Tbe third nr*
tide provides, that “the Cheroketf
nation shall deliver” up “all person#
who are'now prisoners, captured' by
them from any part of the United
Slates;” and “the U. State* sliail re-
store to the Cherokees all prisoner*
now iu capliiHly, whom the citizen#
of the United States have captured
froin.” A period of about nind ,
mouths wa9 allowed for a compliance
with this article. Here the most en*'
tire reciprocity exists, precisely as if
is foiind, usually in treaties of peac^
betweeu European Powers.
“Art. 4. The boundary betwedl
the citizens of the United States and
the. Cherokee nation is and shall be
as follows” [Here (he boundary ifcdes
scribed, which is, in part, the Sami'
with that in the treaty of Hopeneijf
but the Cherokee count ry on the north*
east is considferably curtailed. Her®
had been (lie seat of war during thtf
interval between the two treaties.****
A tract, which is notv the central part
of Tennessee, and which probably
contains a population of move (half
200,000 souls, was still retained by
the Cherokees.}
The article provides that the bounT
dniy shall be ascertained and ntarkedt
and then proceeds tlms; (
And, in order to extinguish foi*»
ever all claims of they Cherokee na*
tion, or tiny pnrt thereof* to any of th#
nd lying to the right of the line a»
bjve described, beginning as nitate*
said, at the Currahee mountain, it if
hereby agreed that, in addition tu tint
consideration heretofore made for I It®
said land, the Umited States will at*
so cause certain valuable good.9 to be
immediately delivered to the (mder<
signed chiefs and Warriors, for the
use of their nation; and (he said.Unfc
ted State* will also cause the sunt of
£ 1,000 to be paid annually to the said
Cherokee nation. And the under*
signed chiefs and Warriors do hereby*
for themselves and the Cherokee na*
tion, their heirs and descendants, for
the consideration above mentioned, re-
lease, quit-claim, relinquish, and cede
all the land to the right of the line do*
scribed and beginning as aforesaid./
tie reason as truth id the* objection.— ident, they were all comprehended
under the phrase of “<A« whole Ouro*
kte nation of Indians” aud the word
tribe i* pot found in thd treaty of Hol-
if this is to be done in the face of day
and before the eyes of oil maukind, it
must be expected that shouts and hiss
es of shame and opprobrium w ill hi
heard in every pnrt of the civilized
world*. Pettifogging is no very lion
orablc business when practised in a
twenty shilling court; but what *01
of pettifogging would this be? Has
fratld or usurpation been perpetrated
in the sanctuary of our dignified Sen
ate, and by means of solemn treaties
ratified in mockery? the effect
which is to dispossess a “nation” of
it* hereditary lands and Government
and to drive the individuals of which i
was composed, (who are called in the
preamble already cited, “the citizens
and members tl^reof”)—to drive aWpy
these “citizen**’ as outcasts and vaga
bonds?
But such an interpretation, so in
sulting to the Cherekees and to the
common seiwn of mankind, and so cru-
One object of the treaty w as de
clared in the prenftible to be to “«;.w
certain the limits of the Cherokees. ’*
In tbe article just quoted, the lifniW
are defined on the north aud east; that
is, on those sides where the wliito
settlers would live, near the border*
of the Cherokee country. On the
south and wt st the Cherokees were
limited by (he country, of their Cioelt
and Chickasaw »ei"hbor*; so that
there/voiihl have been no propriety
in even mentioning the subject here.
At the close of the article, the
Cherokee chiefs; “for thetdseives and
the u‘holft Cherokee nation, their heir#
and descendants, release, quit-claim,
relinquish, and cede” a certain pro*
portion of their country: that veij?
Country which had been rallied “hunt*
ing grounds” in the treaty of Hope-
u'ell, and of w hich, ns it is new pre
tended, the Cherokees were tenant*
at will. Was it eyer before heard,,
that ti tenant at will relented and cedti
land to its righlfaf owner?
The phraseology here used not In**
plies that the tvord allotted, in tlwt
previous treaty, meant no more than
that the boundary of the Cherokee
conntry was fixed, or defined, by the
article* in which it is used: but it
implies also, in the strongest manner^
that the sovereign power of the Cher
okees over their territory v
questionable. The word “*
the most common aud rtperat
; e
in all tramfer* *¥***£;$*.