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MtMrat VOL. If. TIIE CABINET 1$ published every Saturday b. L, MU MASSON, JVarrenton , ‘Geo. at three dollars per annum , which may be discharged by Uvn dollars and f:ft if cents if paid within sixty days cf the time of subscribing. Advertisements conspicuously inserted at seventy Jive cents per square for the Hirst insertion, and fifty cents fur each subsequent insertion ‘Monthly inser tions charged as new advertisements Advertisements not limited u hen hand ed in, will be inserted until forbid , and charged accord ing hr,. OPINION Os the Attorney G nicrul g . f<> the right acquired to the soil under ex isting treaties with the Cherokees. R vciv* (1 at the War Department the 291 h March, 1830* Office of the ML) nicy General 11. 8. 10th March, 1800. Sir; The question which von pro pose, relates t.+ the condition of those lands within the Cherokee hunting grounds, the improvements on which, having been paid for by the United States, the lands themselves have been abandoned by the individual occu pants, who have emigrated to (he west ward. The inquiry renders necessary an examination of those doctrines Which relate to the title of this Indian tribe to the Land which it occupies, and for our relations to them, as these may have been affected by the treaties ur compacts’ have been entered Into with then}* in the very elaborate opinion deliv ered by Chief Justice Marshall, in the rase of Johnson vs. Mclntosh* re.af firming the doctrine asserted in Fletch er and Feck s and speaking of the lands in the occupancy of the Indian tribes, it is declared, that, by the treaty be fttcen Great Diitairt aud the United States, which concluded the war of our lie 1 volution, the powers of Govern ment, and the rights to soil which had previously teen in Great Britain, passed inUnitivety to these States; that the United States, or the several States, have a clear title to all lands within (he boundary fines described in t iv treaty, subject only to the Indian right of occupancy. Such, it is said, ah*, *s the doctrine which has been ht id by the various Kurapean nations, who inquired territory on this contin ent, and who have nW asserted their right to tUe golf* by making grants of iahds whir, were yet i t the possession of Indian tribes. Such, t have to re mark, will moreover be fount) to be the spirit of the several compacts entered p, to with this particular tribe, if these are .arcfuliy considered, and general expressions are hit erupted as they should be, by a. reference to princi pU-fr which necessarily grew out of the relations-between a civilized commu nity, and the savage tribes which ro ved within the fimis of its jurisdiction Sod sovereignty. TANARUS, the first treaty with this tribe, Chat concluded at Hope well, they arc manifestly considered as a conquered people, and tire terms of that, lostruc i . cjit dearly milit ate the recognition of the principle adverted to by (he Su preme UfttirU.iu the case of Johnson ; a\ Mclntosh first a conqueror pre *, Hbes tbo limit!* >f the light of ron- arid that the limitations which humanity, fortifying itaell by usage, imposes Upoii civilized nations caunot ho applied and enforced in relation to a Stiv.ige tribe. i he instrument commences by this emphatic declaration; the coinmss ‘i*f;rr£ plenipotentiary of the United ix. give pence to all (he es, and: receive them into the fat or and protection of tin*. U. States ‘o PA meric on the jo! I owing conditions. The tribe was no longer in that state, in which, an independent and unconquered nation, it.-.could stipulate lor itseit, that there should t*e. peace between tae U ited States and its pco-j pie; but only in a condition to ie ei\c this it 9 a ho in icsoliiog from tiie more grace of she conqueror. It was a boon which was moreovei granted on such conditions , as could ot-.ly have been ini posed on a cniq uuvd aid an nncmli zed people. Tory were requ red to re store ail prisoners and property taken by them during the war. and to do homage hi Tie U-Ted States, by ac knowledging Ihcmsei ves under the pro tection ut this government, and by ex pressly abjuring all other protection. When they had thus humbled them selves before their conqueror, end it became net cssary to assign to them country, in which (hey might dwell, this was not done, by marking out to them the limits of a domain, which should be appivp: i tted to them in fee, or by any oilier determinate title, and which, separated fr >m the U. Slates, should be c irclimsci ihed by limits which each party .should he hound to respect. On the contrary, the terras of the treaty shew, that, like the gift of peace, it vvas'an ai t of mere grace on the part of the U. State 1 by which a base, and determinable interest was conceded, in the lauds which were as signed to then!; Ti e 4;h arii< le of this instrument declares, that the bounda ry allotted to the Ciierokees for their hunting grounds between the said In dians and the United States, within ike limits of lhe United Stales of Amer ica, is, and shall he, &e. The territory thus described, was then al lotted by the will of the conqueror—it was so allotted as mere hunting ground over which the tribe was free to l ove in pursuit of their game, without conferring on them any permanent in terest in the soil itself, the fee in which remained in the State within whose jurisdicli mal limits it was; find these hunting grounds were acknowledged to be within the s reereign limits of the U. Slates. Such were the terms v.hi ii the U. Stales, in the exercise of tiro rights of conquest, and of th s? acquired un der the treaty of i rs 2. with ( treat ii < tain, imposed upon the Cherokecs; and and it was upon these conditions that this tribe agreed to accept, and to re tain possession >f Hie lands, which were thus assigned or allotted to them. The principle thus deoj -ivt ly settled by the treaty of Hopewell is fundamental. It constitutes the basis of ail subse quent stipulations, and furnishes the key, by which they arc to be interpret ed!! When, therefore, i:i the subse quent treaty of Idols ton, the United States solemnly guaranty to the Chcr okecs, the lands not thereby ceded, the stipulation must be understood with reference Tribe interest, which by the treaty of Hopewell , they had in t(,rge lands; which it has been seen was such, and no more, as an allotment ol them for hunting grounds, could create. In the treaty afterwards en tered into at Tellico , the continuing force anil obligation of this treaty is recognised.* for the second article ex pressly stipulates, that the treaties subsisting between the contracting parlies are acknowledged to be of full and operating force; together with the construction and usage under their res pi ctjvc articles, and s> to continue; and that treaty is declared to be addi tional to, and’to form a part of, the treaties already subsisting between the U. States and the Cherokecs. A like recognition of tbp continued (orce ol former treaties, is also found in the se cond treaty concluded at Tellico, on the 25th October, 1805. Except then Warrenton, April ‘24, 1830. as tin y modified by (be stipula nous of smceeding treaties, these car her- compacts continue in force at the present lay\ \Yc may pass, therefore, to those treaties which relate to the emigration tl tho Cherokecs to the lands Westlof the Mississippi, which give rise tojymi* inquiry. As early s in the Fail of the year 1000, two deputations, the one from the upper, the other From the lower Cherokee towns, presented themselves at Washington, the first to declare to the President their desire to engago in the pursuits of agriculture and civili zcd life, in the country then occu pitd; the second, to make known to bin th'ir wish to continue the hunter lisp. i'he deputation from tho upper to. Mis. requested from him the cstab l i diluent of a division line, between the urper ami lower towns, for the pur p r, by thus contracting their society within narrow limits, of beginning (hi-establishment of fixed laws ai.d a regular goverment. These from the lower towns alleged the Scarcity of game where they then lived, and made known their wish to remove beyond the Mississippi river, on some vacant lands of the United States. In the early part of the succeeding year, the President replied to these applications, expressing the w illingness of the Gov ernment, as far as could he reasonably asked, (o-satisfy the wishes of both; assuring to tliose who should remain, its patronage, aid, and good neighbor hood; and giving to those who wished to remove, permission to examine the country on the Arkansas and White rivers, with a promise to exchange it for a just portion of that which they should leave. These transactions are in the same spirit which dictated tho treaties to which we have referred. They are the applications of a depend ent tribe, to a nation whose protection they invoked, and whose right to reg ulaU their concerns they recognised. They arc registered in the compact of 1 &17, which was entered Into to give effect to them. Among other provisions of that in sfruuicnt, it stipulated for the payment by the United States to those cmi gfinns, whose improvements should add real value to their lands, a full valuation for the same, to be ascer tained by a commissioner to be ap pointed by the President of the U. S.” For nil improvements which added real value to the lands ceded to the U. States by that treatyq they agreed to pay in like manner, or, in lieu there of. to give in txchange improvements which the emigrants may leave, and for which they are to receive pay. This compact moreover provided “ that all those improvements left by the emi grants within the bounds of the Cher okee nation, East of the Mississippi river, which add real value to the lands, and for which the United States shall give a consideration, and not so exchanged, shall be rented to the In dians, &c. &c. until surrendered to the nation or by the nation.” It was also agreed, “ that the said Cherokee na tion shall not be called upon for any part of the consideration paid for said improvements at any future period.” The United States, by force of this treaty and in consideration for the pay incuts made in pursuance of it, became land holders in tie Cherokee nation, within the limits of those boundaries which w ere yct reserved to them as hunting ground*. They were author ized by this to exchange the lauds, the improvements on which they had paid for the emigrants, ami to make leases, through tho Agent, of such as they did not exchange. Thes exchanges and leases gave tor the par ties exchanging, and to the Leasees the right of occupancy; aud that was the utmost to which tho Indian title a mounted- Did not the United States succeed to this title of occupancy ? They had the right to designate who should occupy the lands on which the improvements were, for which they had paid to the emigrants, cither by exchanging them with those who n bandoned improved lands within the limits of the territory, and ceded to them by that treaty, or by leasing them through the Agent, to such per sons as they might think proper. .For whom did the United States ac quire this right, whatever it was, to lands within the limits of a particular State? If it bo answered for them selves, the enquiry is, by what author ity could they acquire a title to such lands, without the consent of the State within whose limits they are? And again, were they not expressly bound by tho articles of cession between the United States and Georgia, of the 24th April, 1802, to extinguish the Indian title “ for the use of Georgia ?” If ex tinguished, did not tho right, whatev* erirwas, which was acquired, instant ly enure to the benefit of Georgia, as well because the United States bad no right, without the consent of Georgia, to acquire domain within the limits of that Slate, as because she had solemn ly stipulated, and for a valuable con sideration paid by Georgia, that she would acquire this title for the use of that Slate? The Supreme Court have decided, in the case of Johnson vs Mc- Intosh, as we have seen, that the title to all lands within their boundaries, notwithstanding the occupancy of tho Indians, was in the United States, or in the several States. In Fletcher and Peck, they have declared, with regard to lands lying within the limits, of the State of Georgia, and occupied by the Indians, that the ultimate fee was in that State. The proprietor of the ultimate fee in the soil, must, it would seem, have the right to remove the incumbrances on that title; that is in such a case as this, the right of pre-emption of the Indian title of occu* pancy. Whether this right i9 to bo exercised independently,or under the supervision of the federal government, is a question which would depend on the . terms and validity of what is called the Indian intercourse act* The practice has been variant, but in the most recent case of which I am advised, that of a conveyance by treaty to certain persons who had ac quired by purchase the ultimate fee, which the State of New York original ly held in certain lands in tho occo pancy of the Scnaca tribe in that stato, which treaty was held in the presence of a Commissioner of the United States, and submitted by the Presid ent to the senate, in the usual form, for theiriadvicc and consent; as to its rati fication, that body refused its consent, and in an explanatory resolution, dis claimed the necessity of an inter ference by the Senate with the subject matter.” It would seem, then that if the Indi. an title to the lands, the improvements on which were paid for by the United States, was extinguished by the trea ty of 181 TANARUS, and the acts done in pur* suance of that treaty, that the rights resulting to the United States must have beemacquired for, and must have enured to the benefit of Georgia. Was the Indian title thus extinguished ? We must keep in mind the nature of that title; that it was a right of occu. pancy merely, to be exercised accord* ing to the usages of the tribe. Then we are to consider, that, by the terpia of that treaty, and the payment of the valuation money stipulated for the im provements, tho U States acquired No. 44