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owy j OMEliKEE PHOENIX, MB O IMAMS 5 ADVOCATE* PRINTED UNDER THE PATHONAGH, AND FOR THE UENEFIT OF THE CHEROKEE NATION, AND DEVOTED TO THE CAUSE OF INDIANS.—Ji. LCUDIKill, VOL. II. NSW 33CHOTA, WJELDFE3DA7 D320EMBEEL 30, IQ&9. NO. 33. «-••***' : TRilfTED WttlL, JNO. F. WHEELJEftl, \t $2 50 if paid in advance, $3 in six or #3 50 if paid at the end of tlie year. l'o subscribers who can read only the <Jli*rokee language the price will be $2,00 in advance, or $2,50 to be paid within the year. Kvsry subscription will be considered as continued unless subscribers give notice to th » contrary before the commencement ol a new year,and all arrearages paid. \ny verson procuring six subscribers, and beeomifig responsible for the payment, sha 1 receive a seventh gratis. Advertisements will be inserted at seven ty-live cents per square for the first inser tion, am’ thirty-seven and a halt cents tor each continuance,; longer ones in propor tion. ir.^ All letters addressed to the Editor post paid, will receive due attention. “whether fee w n s the seizure ; they cannot sell, except to the gov in the Stale "(^eorgiai or in the United Slates;” ?' *' , ‘her grants of land in the but wliei.. ?, . ., „ .. wilderness, whic„ h is now the State of imrchasert Mr Prime is seised in fee ol llie house, 1 prolcssed to deride, what Die legUlu- ernnieiit. | and lias the ultimate tale lo him and five rigid oj u slate teas, in icgtird to in* Here we have a clear distinction , his heirs. The lease of the house for dians within its limits. It implied, between the rights of European*, as a thousald years may he worth; that, whatever the legislative right ate of tixed by Europeans themselves, and , $l00,000\ and Mr. Prime’s‘-ultimate j ol a state, iti regard to Indians, might users, a thousand times admitted by different j title” wimh is to be enjoyed by Ins be ascertained to he, Congress should Illinois, made to piivaw. >773: tribes of Italians. The original in-j heirs a thousand years hence, would ank«haw tribe of Indian., are good their e«£"J; »"<* u,, "5 > ’ “'!«* ■“ £»Sl'lo ,.n> a lawjra. <»' “Ain* a a,,d aalid grant., hiadiusot, ihe court, .Ihey please, »,al.tig to ten '.M-j • ^ ( in diet t, say, re-1 of feet, the ° the United Stales I lie Court de-, crelton; the t cSi cntlanis , (ilt i vetting e the doctrine laid turn,, in |diepeled l, cidcd, that such grants were not valid; have confided to their governmei- and, in course of the decision, went somewhat at length into the considera tion of Indian title. Wo can confident ly declare, in this very elaborate anti candid discussion, the Court advanced nothing, which has an unfavorable hearing upon the claims of the Cher* okees. The Court said, indeed, that “the United Stales, or the several states, have a clear title to all the lauds within our national limits.’ What the Court meant by “a clear title” exclusive power of extinguishing the Indian title. These principles are sufficient for the absolute defence of the Chcro- kt-es, so long as they behave peacea bly,- alid are not disposed to sell their country. Biit over and above all this, the .United States have solemnly uurantied to them all their lands;— ll , i '’ case ol Firdcher and Peck, “The decision it,:* Ihe rigid of pre-emption, which the United ^ tcs are to exer cise Ibr the use of Georgia; may ec technically called a seisin in fee, no more proves that Georgia may take possession of the Cherokee country end dii/e out (henatives, or that the grantees ut Georgia may bring a sun not infringe such right. 4. Tiie article docs not decide irlmt the limits of a stale are, nor how timy shall he ascertained. In point nuts of Georgia were the United Slates, lor murt than twenty years after these articles of confederation were a* dopted. 5. 'I lie article was adopted before any of our national treaties were made with the Creeks and Cherokees. Vet this article, which Mr. Madi* son pronounced ‘ obscure and contra dictory;” which described neither owy JiMB 0-A AD list J EC.8.I _ VOATiXoan TAAff* U4 1 * JhcTBAvi within our national limits.’ What I hove, in a hundred instances, admitted nsriE,ji,t>h.wy kta d^p wm ! the Court meant by “a clear title” I that the Cherokee country was under 1-4.!®., Tcr-z TF.o»o-r> DejrStidi-c»H. j is abundantly exp.ained to he the ex- I Cherokee jurisdiction, and irresistibly TffZ Tcso.v Tn DeJ*o®Kd®.i, ur\ elusive right of acquiring the Indian implied, that it was not under theju- D*a**Ez TB.yw i lands. European nations, thecolo- nsdictioii of Georgia.. I be same DelAZ*aA, o-yjiT d,sp o»ejjja K4owt.; nics of Europeans, and the iudepend- ! thing has been implied, in numberless c.vyz wit i»?y, wpa 1 * ’ cut nations ot North Amerina, have . instances, in (he .anguago ot the Le- oeiiwi **hjl yVmivrcrz te»o-j»do-| all claimed that the goner ament, to the | gislolure and Executive of Georgia, ktjIz d^p e^y-v e-sair j exclusion ot private purchasers, have VAR de.«,!-(».r. . I he l iaht of acquiring possession of In- have covenanted toexnel intruders;—I of ejectment against the Indians, sort of Indians were meant,-nor have made laws for this purpose; and ! tlii.i get possession. Mian the lact that t yvhnt the legislative right of a state, Mr Prime is seised in fee ol a house in Vail-street would prove that he misfit hiing an ejectment again t lot conoration of t!ie Merchants Ex change, when be l..ui himself put the conoi ’ t iot, -'n ,-rtf:-*a-.iMn of the p» cm? as could easily be shown if our limits permitted. These agents of the dim territory; and the foreign nations , state have always been in the habit of could not intrude upon the discovery j distinguishing between the “chartered of each oilier respectively. These - limits,” or the “conventional limits,” principles have been constantly as- j and the actual limits ot the state. It sorted by all the governments above is not five years since Governor Troup mentioned, that they have become ; wrote a letter to the Secretary of principles of established law; and the War, in which he argued, that the Market St. Boston, Mass. j Court is bound by them, and cannot soil and jurisdiction of the Creek Geojige M. Tracy, Agent of the A. B. ) .. ,, r i' AGENTS FOR THE CHEROKEE PHOENIX. The following; persons arc authorized to tpceive subscriptions anil payments tor the Cherokee Phoenix. Messrs. Peirce & Williams, No. 20 m regard to Indians, was,—nor what the limits of a state w ere; this article winch has been a dead letter for for* ty years having been superseded by express constitutional provisions now in loree, and followed by numerous ireaties, contai .ing express provisions on the subject, is brought forward 10 deride what is the present condition of the Cherokees. Was it brought forward for any other reason, than because t :e words sounded large to C. F. M. New York. liev. A. D. Eddy, Canandaigua, N. Y. Thomas Ha stings, Uti.a, N. Y. - Pollard St Conyers;:, Richmond, Va. Revv James Campbell, Beaufort, S. C. Wir.ti.vM M >ultrie Reid, Charleston, S. C. Col. George Smith, Statesville, W. T. William M. Combs, Nashville, Ten. Rev. Rennet Roberts, >’ .va 1 , Me. Mr. Trios. R. Gold, (an itinerant Gen tleman.) Jeremiah Austil, Mobile, Ala. Itev. Cyrus Kingsbury, Mayhew, Choc taw Nation. Capt. William Robertson, Augusta, Georgia. Col. James Turk, ftellefonle, Ala. go into the consideration of principles country went together; and that ihotli of abstract justice That is, as we “passed” to the state of Georgia by all know, it is the duty of the Court the treaty of the Indian Spring, to declare what the law is, and apply soil and jurisdiction passed <o Gc< these who knew nothing about the subject ? If the editor of the Charleston Ob server did not unders'and the nature and hearing of the article, he should From the New York Observer. Wc proceed in the examination of the proofs add teed by the editor of the Charleston Observer, to sustain his position that “the soil and juris diction of Indian lands, is regarded as belonging to the states respectively in l which the lands lie; ’ and that ibis is “in accordance with repeated dems- ions.of the Supreme Judiciary of the United States.” The editor says: In the (ms-! of Johnson and M’lntosh the Supreme Court thus expressed itself: “It has never been doubted tliut ei- II corgia it, not to make the law. The “cleilr by treaty, it requires no conjurer to title,”, then which the government say, that they were not in Georgia be- has to Indian kinds, comprises, first, fore the treaty was made', and of course, the power of excluding foreign nations that the soil and jurisdiction of the from intruding upon these lands; sec- Cherokee country, concerning which ondly, the power of forbidding private i no treaty of cession has been made, men from purchasing them: and third- ore not in Georgia. ly, since the adoption of the federal We make two more quotations from ; constitution, thb exclusive power of the opinion of the Court in the case of the general government to extinguish ! Jol#ison and M’lntosh: Indian title bv treaty. All these! “It has never been contended, that claims of the government have been > the Indian title amounted to nothing, admitted by the Cherokees, Creeks, Their right of possession lias never di e asaus, and Clioetaws, in the been questioned. Theclaimofgov- vai ions treaties now in force. The eminent extends to the complete ul- liidians make no complaint, in regard timate title charged with this right oj to these claims. Though their natur- possession, and to the exclusive power | should these treaties ever come he al rights are circumscribed in this- of acquiring that right.'' 1 —p G()3. fore (lie Court, it will be seen that manner, yet they very well know it W.e understand (he Court here as' the “judges" of this Court, and of is for their benefit; and they would be declaring, that all the world admits every other Court in the United the first to desire, that their commu- the rights of the Indirns to return , States are as much “bound '' by-them, nitres might be defended from the in-1 their possession. The government j as by the constitution itself, trisues i>f foreign nations, and the ! claims the sole power of acquiring j The editor of the Charleston Ob- isc-s. by a lease of; th.-astn. I years *T!i<* Che.'-kecs might “as effeetu- a 11v !»;»r rm < jccfnieet” to use the ve ry vords of tlie Court, by pleading that possession, to which they have a legal a ml just claim, as, in tlie cnsi supposed, the Merchants’ Ex change could resist the suit of Mr. Prime, by pleading his own lease a thousand years. It is natural that people should . . mistake in regard to the decision 0 fj "of have hazarded the leading of his the Court, by the mere sound of Me yeoders mtr error, on a subject v.tak Gy interest mg to thousands, many thousands, of human beings, ir/iosi present condition and rights ought lo be. known. If he did know the real char acter and total inaj plicability of the article, we cannot dignify his conduct in quoting it. by any better appellac tion, than that it was throwing dust in the eyes of his leaders. Why did lie not quote the treaty of Abet mm, or the late treaty of Adiianople; — Either of these instruin; it's lias as much hearing upon the present o m't- (ion of the Cherokees as the article- has. which was so osfeofaliously quoted from the Old CoufedciatioiT. ivordxised; that is, by taking llie pop ular meaning of words, i«.itiltr than the legal and technical meaning.— Thus, for instance, the “undoubted title” and the “ultimate title” oi an acre of land bordering on Wall-street, might not be worth fne cents; be cause it might he charged and in cumbered, with “the mere right oj oc cupancyfor a certain period, which right of occupancy might be worth a million of dollars. But as to any mis takes of this kind, the Court is not in fault. In making legal decisions, it is often a matter of necessity that tech nical words should he used. The Court was not called in either of the cases cited, to say any thing a- bout treaties with (be Indians; but would no more think of complaining ot posse that their natural rights are limited, j government is always to be under- by the claims of the United States,' stood as charged, or incumbered, with and the stipulations made, for the hen-j the existing occupancy of the Indians, efii of both parties, in accordance j In other words the right of the In- with these claims, than the people dians to occupy tlio.ir country us long Bl j | of the United States generally would 1 ns they please., is hi.no wise diminished titer llift Umted Mates or-tlte ttcvctal „r oo.nplaitting. Ih„t llie right, lor afetr.J, by the claim of the 8 m- of the several states are abridged by | eminent to be the exclusive purchaser; the powers giv°n to the general gov- and the claim of exclusive purchase, states had a clear title to all the lands within the houn ’ary lines de scribed in tho treaty [of 1783] subject only to the Indian right of occupancy. nnu that the exclusive power to ex tinguish that right was vested in that government which mirdit constitution ally exercise it.”—8 Wheatons Re ports, p. 585. “The real question presented by the issue was “whether tiie seizure in fee was in the Sta’e of Georgia, or in the United States;” having decided that the seizure in fee was in the State of Georgia, the judgment was that she could olien the lands in fee, although they would be subject to the Indian right of occupancy which had not been extinguished.” We are not disposed to visit with severe censure an ordinary editorial blunder; but when a citation is made from a law-book, under such circum stances, and with such an air, ns if it were decisive of the controversy, the editor, who makes the citation, should at least give a true account of the ppiiit decided. The question, in tlie case of Johnson and M’Intush, ernment. In Ike passage takoi from Whea ton's Reports, the Court said the ti tle of llie United Slates was subject to the Indian right of occupancy.— What dpes the editor of the Charles ton Observer think is meant by a right of occupancy? Let him look again in to Wheaton, p. 57 1, and he will find. Hiat the Court said of the “original inhabitants” of this continent general ly, “They were admitted to he the rightful occupants of the soil, icith a legal us well as just claim to retain possession of it, and to use it accord ing to their own discretion.” This is said, be it remembered, or, as it has usually been called, this right of pre-emption, is the “ultimate title,” of which the Court speaks. Again: “The absolute ultimate 'ti tle has been considered as acquired hy discovery, subject only to the Indian title of occupancy, which title the dis coverers possessed Tlie. exclusive right of acquiring. Such a right [that, is, the -Indian title of occupancy] is no more incompatible with a seisin Tn fee, than a lease for years is, and might as effectually bar an eject ment.”—p. 492. Common readers, not being ac quainted with legal terms,- cannot take the force of this quotation. Let respecting Indians generally, found in j us explain it. If Mr. Prime holds a their native condition, and undefeud j house in Wall-street to himself and cd by any guaranty of territory, or a- his heirs forever, he is said to he nv express stimulation in their favor, seised,in jet of that house. lie may The Indians, then, have the rtght of make a lease of the house, for a volu- occupying their country, of retaining pouession of it, of using it according to tlitir discretion; and thus far they have able censiderojion, to the corporation of the Merchants’ Exchange, for llie term of a thousand years, and the cor fraud of private speculators. They of the Indians their unquestioned right ! server, quotes the following words; aining of possession; hilt this claim of the viz. Congress has the power “of regulating and managing all affairs with the Indians, Hat members of any of the States, provided that the legis lative right cf any state» within its own limits, be not infringed or violated." Now these words, thus se*l off with italics, seem very important; and per haps the editor thought them so.— But let it he considered, 1. That this article has been obso lete for mote than forty years, having had, during that time, no force what ever. 2. That it. was superseded hy a provision of the constitution, relating to the same subject. On this provi sion & the article for which it was a substitute, Mr. Madison thus writes, in the 42d number of the Federalist; “The regulation of commerce with the Indian tribes is very properly unfet tered from two limitations in the arti cles of i on federation, which renders (he provision obscure and contradic tory'. The power is there restrained to Indians not members of any state, and is not to violate or infringe the legislative right of any state tviihir. its limits. What description of In dians arc to he deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in tlie federal coun cils.” 3. The article never decided, nor a legal as well ns just claim. But poration may take possession: still From the New Fork Observer. RIGHTS OF INDIANS, In the case of Goodeli vs. Jackson* which came before the Couit of Er-r rors in this state, in February 1823,. and is reported in 20 Johnson, 693— 734, Chancellor Kent expressed llie following opinions respecting the rights- of our Indians. We v ill only say, if Indians, reduced so b w in numbers and character as are the mise.able remnants of tiihcs in this state, are still sovereign communities, having the right to govern themselves by their own laws, the claim of the Cherokees to this distinction must he past all question. “The Ooeidas, and the other tribes composing the six nations of Indians, were originally, free and independent nations. It is'for the counsel, wko> contend (hat they have now ceased to- be a distinct people, and become coin* pletely incorporated with ns, and clothed with all tin rights, and bound to all the dpties of citizens, to point out the precise time when that event took place. I have not been able lo designate the period, or to discover the requisite evidence of such an en tire and total revolution. Do our laws, even at this day, allow these In dians to participate equally with us, in our civil and political privileges? Do they vote at our elections, or ore they represented in our legislature, or have they any concern, as jincs or magistrates, in the administration of justice? Are they on the other hand, charged with the duties and burthens ot citizens? Do they pay taxes, or serve n the militia, or are they re quired to take a share in any of the details of our local institutions? Do we interfere w ith the disposition, or descent, or tenure of their property!