r\N ,AS / FORMATION OF NEW GOVERNMENT BY CHEROKEE TRIBE I I I ■HHHiHHi^^HnHHHHHl r j J -rV?~S ; • • u ~x ■ A- f % ■■'■ f % .#•.>■• /} THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA ENDOWED BY JOHN SPRUNT HILL CLASS OF 1889 Cp970.03 UNIVERSITY OF N.C. AT CHAPEL HILL 00032204640 This book must not be taken from the Library building. ^Otli Congress, [Doc. No. 211.] Ho. of Rees, 1st Session. Executive. CHEROKEE GOVERNMENT. MOM THE PRESIDENT OF THE UNITED STATES. TBAXSKITTING THE INFORMATION REQUIRED BF A RESOLUTION OF THE HOUSE OF REPRESENTATIVES, OF THE 3d INSTANT, IN JIELATION TO THE FORMATION OF A NEW GOVERNMENT Bt THE OHISIIOKSE TR3BI2 Or IHBIJkim WITHIN THE States of North Carolina, Georgia, Tennessee, and Alabama, <$x, March 22, 1828. Read, and laid upon the table. WASHINGTON : *IUm\BJ>' ET GALES &f SUATO*. tftgfi. \ [Doc. No. 211.] To the House of Representatives of the United States ? Washington, QQd March, 1 828, In compliance with a resolution of the House of Representatives, of xhe 3d instant, touching the formation of a new Government by the Cherokee Tribe of Indians, within the States of North Carolina, Georgia, Tennessee, and Alabama, and requesting copies of certain correspondence relating thereto, I transmit to the House a report from the Secretary of War, together with the documents desired by the resolution., JOHN QUINCY ADAMS, I-Doc, No, 211.1 Department of War, 20th March, 1828. To the President of the United States: Sir : In compliance with your request, 1 have the honor to submit to you the following report on the resolution of the House of Repre- sentatives, of the third instant, and which is in the following words : «' Resolved, That the President of the United States be requested to communicate to this House, if it will not, in his opinion, be injurious to the public interest, copies of any correspondence between the Governor of the State of Georgia and the Executive of the United States, touch- ing the formation of anew Government by the Cherokee tribe of In- dians, within the States of North Carolina, Georgia, Tennessee, and Alabama ; and, also, copies of any correspondence between the Ex- ecutive Government of the United States, or Any Department thereof, and any officer or agent of the United States, or of any State, or any Indian tribe, showing the extent to which such new Government has been recognized by the Executive of the United States, and how far it is considered as changing or disturbing the relations heretofore existing with the said tribe, and advancing or obstructing the policy of the United States towards them; together with any information, not heretofore communicated, concerning the agency which white men, citizens of the United States, have had in forming the same; the extent to which any citizon of the United States, without the authority of Government, has had verbal or written intercourse with the said tribe, with intent to influence their measures or conduct, and to defeat the measures of the Government of the United States; and the insufficiency of existing laws to prevent or punish such interference ; together with any other information in his possession, not heretofore communi- cated, showing the necessity of further legislative provision to aid in carrying into effect the convention of the year one thousand eight hundred and two, between the United States and Georgia, by extin- guishing the Indian title to lands in Georgia, in conformity with the terms thereof; as well as any information exhibiting the expediency of further legislation, for the purpose of confining the Indians to the hunting grounds assigned to them, and preventing their intrusion in- to the white settlements, without a regular passport from the Agent of their respective tribes." First. Copies of two letters from his Excellency Governor Forsyth to the President of the United States, numbered l, 2 ; and of the re- port of the joint committee of the two branches of the General Assem- bly of Georgia, number 3, (and which are enclosed herewith) com- prise all the correspondence between the Governor of the State of Georgia and the Executive of the United States, touching the forma- 6 |JD 0C - No - 211.] lion of a " New Government," by the Cherokee tribe of Indians, within the States of North Carolina, Georgia, Tennessee, and Alabama. Second. There is nothing on the records of this Department show- ing that the " New Government" of the Cherokees has been recog- nised in any way, by cither the Executive Government of the United States, or any Department thereof, or any officer or agent of the United States, or of any State, or any Indian tribe. Third. The accompanying copy of a communication, addressed to the Agent for the Cherokees, number 4, will show that the ''New ■Government" of the Cherokees is not considered as changing or dis- turbing, the relations heretofore existing with the said tribe, or as advancing or obstructing the policy of the United States towards them. Fmirih. There are no documents on the files of the Department, not heretofore communicated, going to show the agency which white men, citizens of the United States, may have had in forming the " New Government," or the extent to which any citizen of the United States, without the authority of Government, has had verbal or written in- tercourse with the said tribe, with intent to influence their measures or conduct, or to defeat the measures of the Government of the Unit- ed States. As it regards the sufficiency or insufficiency of existing laws to pre- vent or punish such interference, it is believed there is no law which provides for such a case. The only law applicable to intercourse be- tween the whites and Indians, is that of 1802, commonly called the u Intercourse Law," the provisions of which, it would seem, do not embrace the case referred to. As to the question, how far to punish, by penal enactments, suc/i intercourse, would subserve the end in view, It is one of policy, which refers itself to the discretion of Congress. In reference to that part of the resolution relating to the necessity of further provision to aid in carrying into effect the convention of the year one thousand eight hundred and two, between the United States and Georgia, by extinguishing the Indian title to lands in Georgia, in conformity with the terms thereof, I would respectfully refer to the report which I had the honor to make, and which bears date Febru- ary 3, 3 826, and to the communications now before Congress, re- commending that means be placed at the disposal of the Executive with a view to this object. Nothing in addition occurs at present by which the Executive could, with such reasonable prospect of success, promote the intention of that compact. There may, should the Congress think proper to interfere, be ad- ditional restraints imposed on the Indians, in confining them within the limits of their hunting grounds, and preventing them from passing over the lines which divide them from the white settlements ; but the question of expediency, in superadding any thing to the present law of intercourse, may, it is presumed, be more correctly decided by Con- gress. My own opinion, however, is, that it would be a measure of at least doubtful policy, and might lead, in the infliction of punishment on the Indians, who might not know 7 exactly where those artificial line? [Doc. No. 211.] 7 run that divide their country from the whites, and who might not be thoughtful enough to provide a passport, or find it convenient to do so, to excitements and ill will, on their part, towards those of our citizens who might cross into their territory ; and that consequences unfavor- able to the existing, but partial, harmony of the present relations might be disturbed, by the exaction of any new obligations, or the adoption of a sterner policy. Respectfully submitted. JAMES BARBOURs No. 1. Executive Department, Georgia, Milledgeville, January 16, 182$.. Sir: The enclosed copy of a report, made by a Joint Committee of the two branches of the General Assembly of this State, and sub- sequently approved by them, is transmitted to you, in compliance with their request. I have honor to be, With consideration and respect, Your obedient servant, JOHN FORSYTH The President of the United States* No. 2. Executive Department, Geoe&ja? Milledgeville, 26th January, 1828, Sir : You will find by the enclosed document, bearing the title o£ '< Constitution of the Cherokee Nation, &c," that the remnant oC the Cherokee tribe of Indians on this side of the Mississippi, is at- tempting to erect a permanent Government on parts, and within the- jur.sdictions, of the States of Alabama, Georgia, North Carolina? and Tennessee, on territory solemnly guarantied, reserved to them forever, as they allege, by the United States. As the Chief Magis- trate of one of the States "• concerned, " it is important for me to know, and I have the honor to apply to you to inform me, what mea- sures have been adopted, or are contemplated, by the General Go^ ver.iment, to prevent this violation, by a pretty tribe, of the 3d sec- tion of the 4th article of the Constitution of the United States, which 8 [Doc. No. 2ii.] provides that "no new State shall be formed, or erected, within the jurisdiction of any other State ; nor any State he formed by the junc- tion of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress." This application would have been made earlier, but the hope was cherished, as long as it could be reasonably indulged, that some public manifestation of the intentions of the Federal Administration would render it unnecessary. I have the honor to be, With high consideration and respect, Your obedient servant, John Quincy Adams, President of the United States. JOHN FORSYTH* No. 3. In Senate, December 19, 182T. The Joint Committee upon the State of the Republic, to whom was referred so much of the late Governor's communication as regards the acquisition of the Georgia lands at present in the occupancy of the Cherokee Indians; and the absolute and jurisdictional right of the State to the same; Report: That they have bestowed upon this momentous subject, the most mature and deliberate consideration, and although some of the positions which they feel warranted in occupying, may, at the first view, appear bold and novel, yet they cherish the hope, that, by ad-, verting to the well ascertained and long established laws of natrons,. those positions will be found abundantly supported. We are aware that our repeated appeals to the General Govern- ment upon this subject, so vitally interesting to the People of Georgia, have been looked upon as impertinent and obtrusive \ but your Com- mittee believe that the State has been disposed to suffer in silence, so long as the evils under which she labored were sufferable; and that when her claims shall be fairly investigated, and it is seen how unreasonably they have been delayed, an enlightened and just com- munity will pronounce the course she has pursued, to have been mark- ed with great moderation and forbearance. We propose, in the discharge of our present duty, to inquire first, into the nature and present situation of our claim upon the General Government ; and, second, to investigate the nature and extent of our title to the territory in question, considered abstractedly from our claim upon the General Government. By the 4th section of the Articles of Agreement and Cession, enter- ed into on the "24th day of April, 1802, between the commissioners of the United States, on the one part, and the commissioners of the [Doc. No. 211.] 9 State of Georgia, on the other part, it was expressly stipulated and agreed, that the United States should, at their own B expense, extinguish, for the use of Georgia, as early as the same could be practicably ob- tained, on reasonable terms, the Indian title to all the lands within the State of Georgia. It will hardly he contended, that this was a mere naked promise, and therefore to he violated at pleasure hy the United States : for the contract imports upon its face, a most ample and sufficient considera- tion. We are nut ignorant o-f the fact, that the General Government, hav- ing the power in her own hands, is disposed to put her own con- struction upon this promise, and to make herself the sole and exclu- sive judge of what may be considered "reasonable terms ;" but we respectfully contend, that, if she designs to keep up even the show of justice, she will suffer this to be controlled by the same rule of con- struction applicable to all other contracts ; that is to say: that the words used, shall be understood in that sense which is best calculated to effectuate the true intention of the contracting parties. The re- ciprocal objects intended to be accomplished by the United States and Georgia, by the contract in question, were few and simple. They intended that Georgia should cede to the United States a vast extent of territory therein described; that the United States should, at their own expense, and upon their own responsibility, extinguish, for the use of Georgia, whatever claim or title the Indians might have to the lands lying within her limits ; and that this should be done*' as early" as it could be, upon practicable and reasonable terms. We consider it certain, from the terms of the contract itself, and particularly from the consideration which was paid, that it was the intention of both parties that the Indian title should certainly, at some time or other, be extinguished. The time was left in- definite and uncertain, not because it was contemplated that any circumstance should occur, or state of things exist, that should deprive Georgia of those lands ; but because this State reposed such unbounded confidence in the justice and good faith of the General Government, as induced her confidently to believe, that no opportunity would be permitted to escape, and that no fair and ho- norable exertion would be withheld, for the speedy and punctual ful- filment of the promise. We admit that, after much anxiety and delay, Georgia is about to reach the full benefit of the contract in question, so far as if regards her lands situated within the Creek nation of Indians; but the man- ner in which this has been accomplished, compels us to say that we are less indebted to the General Government for the result, than to the exertions of our late able and patriotic Governor. Although Georgia is about to obtain the last foot of Creek lands to which she is entitled, yet it must be remembered that there is still a consider- able portion of Cherokee lands to which she has precisely the same title; in relation to which, the General Government is under the same obligation, and which, nevertheless, still remains in the possession of 10 [Doc. No. 211. J the Indians. By what motive, or reason the General Government can be influenced in so pertinaciously and unjustly refusing en- tirely to redeem her pledged faith to Georgia, we are unable to per- ceive. The whole civilized World knows that Georgia acted a gal- lant and distinguished part during the Revolutionary war, in achiev- ing our liberty and independence; and our sister States will do us the justice to testify, that, since that time, Georgia has not withheld her treasure or her sword from the defence of our common country and national rights. We mention these things, not by way of boast- ing, or out of vain glory, but to show that Georgia has violated none of the obligations by which she was bound to her sister States, and, therefore, that there is the less justice in their violating their obliga- tions to her. It will be remembered that the Articles of Agreement and Cession were entered into in 1802; and that they imposed upon the United States the obligation of procuring the relinquishment of the Indian title, as soon as the same could be done " peaceably," and upon " reasonable terms." Immediately upon the ratification of these articles, it became the duty of the General Government to im- prove every opportunity that might present itself, and, with all her influence and energies faithfully applied, to have sought diligently for opportunities to effect such relinquishment. She did not do so, but, on the contrary, manifested so much indifference, and for so long a time, that Georgia became dissatisfied, and took occasion re- spectfully to call the attention of the General Government to this sub- ject — a liberty that she has several times since found it necessary to exercise, but which has either been treated with silent contempt, or has subjected her to reproach and calumny. That the United States have violated, most palpably, their contract with Georgia, we think is made evident, when it is remembered, that, since the ratification of the Articles of Agreement and Cession, thelndianshavebeen removed entirely from Ohio, Kentucky, North and South Caroliuas, Tennes- see, Missouri, and almost all Arkansas ; and that, since that time, five or six times as much land as belonged to Georgia, and was in the possession of the Indians, has been acquired in Alabama for the use of the United States, and that, too, " upon peaceable and reasona- ble terms;" besides large cessions in Mississippi, Illinois, Michigan, and Florida. And it is a fact so notorious, that we presume no one will venture to dispute it, that, upon the termination of the late war with Great Britain and the Indians, the United States had it com- pletely in their power to procure, for the use of Georgia, the princi- pal part of the lands to which she was entitled, not only upon "peaceable and reasonable terms," but upon just such terms as they might have pleased to prescribe; but this was not done, nor attempt- ed to be done : on the contrary, the United States, by negotiation, effected, for their own use and aggrandizement, large cessions of territory in another part of the nation, and, thereby, threw the In- dians in greater numbers upon our territory, and so circumscribed their limits, as greatly to diminish the prospect of their willingness to make future cessions.! either for the benefit of Georgia, or for any [Doc. No. 211.] 11 other purpose. And, since that time, it has been the constant and favorite policy of the United States, not to hold out inducements to the Indians to yield up the possession of the Georgia lands, but to so add to their comforts, and so instruct them in the business of hus- bandry, as to attach them to their comforts, and as to attach them so firmly to their country, and to their homes, as almost to destroy the last ray of hope that they would ever consent to part with the Geor- gia lands. It is now alleged, we understand, that it is impossible for the United States to obtain the land in question for the use of Georgia, upon "peaceable and reasonable terms;" and that, there- fore, they are under no obligation to obtain them at all. By whom, and in what way, we beg leave to inquire, has this impossibility been produced ? Surely by the United States, and by their policy, and that, too, against the consent and remonstrance of Georgia. And is it possible, that the General Government will consent, in this way, to benefit herself, and to take advantage of her own acts, and that, too, to the injury and oppression of one of her own members ? For the dig- nity and honor of our common country, we earnestly hope not. But, al- though the General Government is under this obligation, and from which she cannot honorably release herself, in any other way than by complying with it, yet, judging from our past experience, we can scarcely venture to hope that she will redress our injuries, and esta- blish our rights "We are apprized that this subject engaged the at- tention of the last Legislature — that the resolutions which they adopted, were submitted to the President of the United States, and we are glad, that, in reply, he condescended to express to our Sena- tors in Congress, a " wish to gratify the State ;" but we are sorry that he added, " negotiation (with Indians) was hopeless, and that he could not consent to apply force.'' We are at liberty to understand this answer no otherwise, than as a distinct and formal determination to take no step to obtain for, and secure to, Georgia, her long de- layed rights. We have waited upon, and trusted to, the justice and liberality of the United States for upwards of the fourth of a cen- tury, and the result, to us, is disappointment, insult, and injury. From this gloomy and almost hopeless prospect, we turn our at- tention to the second branch of our inquiry, and trust that we shall be able to establish in the State of Georgia a good, legal, and perfect title to the lands in question ; and that we have the right, by any means in our power, to possess ourselves of them. In the examination of this important and interesting question, we are necessarily carried back to the earliest history of this country. When the continent of Ame- rica was first discovered, it was possessed and owned by various wan- dering tribes of savages, and the discoverers asserted successfully the right of occupying such parts as each discovered ; and thereby they es- tablished their supreme command over it, asserting their claim both to domain and to empire. By domain, we mean that by " virtue of which a nation may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding;" and by empire, we mean the " rights of sovereign command, by which the nation directs and regulates, at its 12 [Doc. No. 211.] pleasure, every thing that passes in the country." Precisely in this way, and in no other, did Spain, France, England, Holland, and Portugal, obtain sovereignty over the portions of this country discovered by each. It may be contended, with much plausibility, that there is in these claims more of force than of justice ; but they are claims which have been recognized and admitted by the whole civilized world, and itis unquestionably true, that, under such circumstances, force becomes right. This kind of title is not only good and valid, agreeable to the laws of nations, but is perfectly consistent with na- tural justice. The earth was certainly made for the benefit, comfort, and subsistence of man, and should be so used as to accommodate the greatest possible number of human beings. It was, therefore, perfect- ly in accordance with the designs of nature, that the densely populat- ed countries of Europe, should possess themselves of the immense forests in America, which were used only as hunting grounds, and employ them in promoting the comforts, and providing for the sub- sistence of their overflowing population. Acting, no doubt, upon these principles, Great Britain occupied and colonized the province of Georgia, the limits ©f which, anterior to the Revolutionary war, were defined and made to extend from the Atlantic coast to ihe Mississippi, and from the thirty-first to the thir- ty-fifth degrees of north latitude. The whole of this territory was made to form a provincial Government — thus exercising the highest and most unequivocal acts of sovereignty. In this exercise both of domain and empire, on the part of Great Britain, certain portions of territory were reserved for the use of the Indians, and the Indians themselves were declared to be under the protection of Great Britain, and the lands reserved were also under the sovereignty, protection, and dominion of that Government. Thus it is seen, that the sove- reignty of Great Britain over the whole of Georgia was complete and perfect j that the absolute right to the soil was in her ; that the Indians were under her protection ; and that their possession w r as on- ly permissive. Things remained in this condition until the Revolu- tionary war; upon the termination of which, by the treaty of peace between the United States and the mother country, the sovereignty, to the full extent as claimed, owned, and exercised by Great Bri- tain over all the lands and Indians within the State of Georgia, pass- ed to, and vested in, the People of this State. We have shewn, we trust, very clearly, that, at the end of the Revolutionary war, Georgia pos- sessed, and had a right to exercise, absolute control and sovereignty over the whole of the territory lying within her then limits ; that her claim to domain and empire was not disputed ; that the absolute title to the soil was in her; that the Indians were under her protection; and that their possession was by her permission, as it had previously been by that of Great Britain. Thus far, we apprehend, the premises that we have established, and the conclusions we have drawn, will not be disputed : for, if they are wrong, the very argument that proves them to be so, must defeat the title by which every foot of land in the United States is held: for they all derive title in the same way. It fDoc. No. 2 11. J 13 now remains for us to shew, that, since the Revolutionary war, Geor- gia has done no act, and entered into no compact with her sister States, by which she has divested herself of any portion of her sove- reignty affecting her rights now in question ; and this proposition will be supported, if we can shew that no such consequence can result from the Articles of Confederation, the Federal Constitution, or the Articles of Agreement and Cession of 1802. To shew that the Arti- cles of Confederation have divested Georgia of no portion of her so- vereignty, it does not appear to us necessary to take any other ground than the very obvious one, that these articles have been abrogated by the Federal Constitution, which was adopted in its place and stead. But we contend, that, even prior to the adoption of that Constitution, they contained no provision, when properly construed, affecting the right in question. In the Articles of Confederation, we find this provi- sion : "'each State retains its sovereignty, freedom, and independence; and every power of jurisdiction and right which is not, by the Confeder- tion, expressly delegated to the United States," is reserved to the Peo- ple of the States, We may search in vain in the Articles of Confede- ration for any express delegation of the right of sovereignty or jurisdic- tion by Georgia to the United States, over the territory in controversy. No such express delegation was ever made ; the consequence is obvi- ous : it is reserved to the People of the State. Those who differ with us in opinion, may attempt to sustain themselves by one further provision in the Articles of Confederation. Wo allude to the power given to the United States of regulating "trade" and managing all affairs with the Indians, not members of any particular State : but, by express provision, this power is, in no instance, to be exercised so as to " in- fringe or violate the legislative right of any State within its own li- mits." We are by no means satisfied, but that the Indians, resident within the limits of Georgia, may fairly be considered members of the State : if so, the United States possess not the right to interfere with them, even so far as to regulate " trade;" but whether they be members of the State, or not, the United States are expressly prohibit- ed from interfering with them in any way so as to " infringe or vio- late the legislative right of the State within her own limits." We think, therefore, that the Articles of Confederation have not affected our title in the least. We next proceed to the inquiry, whether the State's title to, and right of sovereignty over the lands in controversy, have been affect- ed by the Federal Constitution ; and, if affected, to what extent? We are not disposed to afford even the feeble aid at our. example for frit- tering away the Constitution by construction. We prefer to take that instrument as it is, and not to take from, or add to, its provisions. We have always believed, and yet do, that all powers, not expressly granted by that Constitution, or plainly implied in, andnecessary and proper to the execution of, the expressly granted powers, are reserved to the States; and we earnestly insist upon this rule of construction, so far as that instrument applies to the subject tinder consideration. In the third section of the fourth article of'tlie Constitution, we 14 [Doc. No. 211.] find this provision : " Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed, as to prejudice any claims of the United States, or of any particular State.*' We are unable to see what argument can be fairly drawn from this provision, to show that Georgia has surren- dered up to the United States any portion of her right, so as to affect the present question. This provision only gives to theUnited States the power to control and dispose of the territory or property of the General Government ; but it vests them with no power whatever to control or dispose of the territory or property of any State: on the contrary, it is expressly stipulated, that, in the exercise of this pow- er, the claims of no particular State shall be prejudiced. It will not be contended, we apprehend, that, since the Articles of Agreement and Cession of 1802, the United States have the smallest shadow of a ti- tle to the land in controversy; and, if it were considered necessary, we could easily shew that, even before that time, they had no well-founded title. There is, therefore, nothing in this part of the Constitution ex- pressly or impliedly divesting Georgia of the right of sovereignty in question : and from the very fact that no such right was surrendered up into the hands of the United States, we are warranted in asserting that the right was retained by the State. We understand that the power which (he Constitution confers up- on the President, by and with the advice and consent of the Senate, to make treaties, is claimed to have an influence upon the present question \ but we are unable to discover any necessary connection between this provision in the Constitution and the question under consideration. This part of the Constitution we have always under- stood, applied to foreign affairs only. We are apprized, however, that the United States have treated with various tribes of Indians at different times, and that those treaties have been submitted to the Senate for ratification. But, if we mistake not, since the adoption of the Constitution, Virginia, Ohio, New York, and Kentucky, have exercised the right of treating with the Indians residing within their limits : and their right to do so, has not, so far as wc know or believe, been disputed. But, upon this point, we feel no sort of solicitude : for, it is sufficient for our purpose, that, in the Constitu- tional provision now under view, there is no express or plainly implied surrender, on the part of Georgia, of her right of sovereignty to the territory in question. If there is any other provision in the Federal Constitution, af- fecting this question, we are not apprized of it : and, we consequently arrive at the conclusion, that the rights and powers of Georgia, in and to the lands in question, remain precisely where they stood im- mediately upon the conclusion of the Revolutionary war. with the exception that Georgia has, in common with all the other States, given up to the General Government a portion of her right of em- pire ; but she has surrendered that right no further in relation to the territory in dispute, tli&n she basin relation to all the rest of her ter- [Doc. No. 211.] ' 15 ritory. In aid of our opinion upon the question of title, we beg leave to refer to the decision made by the Supreme Court of the United States in the famous case of Fletcher and Peck, which fully establishes the principle that the " Legislature of Georgia, unless restrained by its own Constitution, possesses the power of disposing of the unappropriated lands within her own limits, in such manner as her own judgment may dictate." And the same case establishes the further principle, that •'• the Indian title is only permissive and tempo- rary, and not at all inconsistent with a seizin in fee on the part of Georgia." We need only add, that this decision was made long subsequent to the adoption of the Federal Constitution. By the Articles of Agreement and Cession of 1802, Georgia parted with, and gave up all her claims and rights, both of domain and empire, to the territory thereby ceded to the United States. But these articles contain no formal and express surrender of any such rights, to the territory reserved. We are aware that such surrender is claimed to be implied from the term "Indian title," as there used. But when the subject is properly understood, we contend that this conclusion does not necessarily result from the premises. This term was not intended, and cannot be understood as building up, and vesting in the Indians, any kind of title to the lands in contro- versy ; nor was it intended to add to, or detract from, the title which they already had. It was only used as a term- descriptive of that title. We have already seen what that title was ; that it was a mere possessory one ; and that they had so little interest in the soil, that their possession was not inconsistent with a seizin in fee on the part of Georgia. But it is contended, that, by the Articles of Agree- ment and Cession, a consideration was contemplated to be paid by the United States to the Indians, for their relinquishment of this title ; and, therefore, that it was of such a character as was entitled to re- spect, and as could not be taken from them unless by their consent. We are of a different opinion. We have already seen the fragile tenure by which they hold, and do yet hold, those lands ; but, how- ever slender it may have been, yet some act was necessary to be done by the United States or Georgia, in order to oust them of possession. This act must necessarily have been of cither a warlike or pacific character. If of a warlike character, iio consideration of a pecu- niary nature could be necessary : but if of a pacific character, then the object was to be accomplished by negotiation, and a considera- tion would necessarily be the result. Whenever it has been neces- sary to accomplish a similar act with the Cherokees, or any other nation of Indians, by either of the means just mentioned, from ob- vious motives of policy, as well as humanity, the United States have preferred resorting to negotiation and presents. In all such cases, the United States were by no means bound to resort to such mea- sures : they did so from choice. This custom was well known to the contracting parties to the Ar- ticles of Agreement and Cession at the time it was entered into ; and the relinquishment of the Indian title was intended to be effected in 16 [Doc. No. 211.] the same way, and the provision in question was simply intended to make the United States sustain all the expense of negotiation, presents, and consideration, which otherwise would have fallen Upon Georgia, had she proceeded to the accomplishment of the same ob- ject by pacific means. But there is nothing in this provision which prevents the United States or Georgia from resorting to force. On the contrary, this right seems to be admitted, although the United States would not bind themselves to use it. At all events, it is evi- dent, that, if Georgia possessed this right before entering into those articles, she possesses it yet : for a surrender of it is no where to be found. Before Georgia became a party to the Articles of Agreement and Cession, she could rightfully have possessed herself of those lands, either by negotiation with the Indians, or by /o?'ce,' and she had determined, in one of the two ways, to do so. But, by this con- tract, she made it the duty of the United States to sustain the ex- pense of obtaining for her the possession ; provided it could be done upon reasonable terms, and by negotiation. But, in case it should become necessary to resort to force, this contract with the United States makes no provision. The consequence is, that Georgia is left untrammelled, and at full liberty to prosecute her rights in that point of view, according to her own discretion, and as though no such contract had been made. Your committee, therefore, arrive at this conclusion : that, anterior to the Revolutionary war," the lands in question belonged to Great Britain; that the right of sovereignty, both as to domain and empire, was complete and perfect in her ; that the possession by the Indians was permissive ; that they were under the protection of that Government ; that their title was temporary ; that they were mere tenants at will ; and that such tenancy might have been determined at any moment, either by negotiation or force, at the pleasure of Great Britain ; that, upon the termination of the Revolutionary war, and by the treaty of peace, Georgia assumed all the rights and powers in relation to the lands and Indians in ques- tion, which heretofore belonged to Great Britain ; that, since that time, she has not divested herself of any light or power in relation to the lands now in question, further than she has in relation to all the balance of her territory ; and that she is now at full liberty, and has the power and right to possess herself, by any means she may choose to employ, of the lands in dispute, and to extend over them her authority and laws. Although your committee believes the absolute title to the lands in controversy is in Georgia, and that she may rightfully possess her- self of them, when, and by what means she pleases; yet, they would not recommend an exercise of that right till all other means fail. We are aware that the Cherokee Indians talk extravagantly of their devotion to the land of their fathers, and of their attachment to their homes, and that they have gone very far toward convincing the General Government, that negotiation with them, in view of procur- ing their relinquishment of title to the Georgia lands, will be hope- less. Yet, we do confidently believe, that they have been induced to [Doc. No. 21 1.] 7 assume this lofty bearing by the protection and encouragement which has been afforded them by the United States, and that they will speak a totally different language, if the Genera! Government will change its policy toward tbem, and apprize them of the nature and extent of the Georgia title to those lands, and what will be the probable conse- quence of their remaining refractory. Your committee would recommend that one other and (he last ap- peal be made to the General Government, with a view to open a ne- gotiation with the Cherokee Indians upon this subject. That the United States do instruct their Commissioners to submit this report to tf»e said Indians; and that, if no such negotiation is opened, or if it is, and it proves to be unsuccessful, that then the next Legislature is recommended to take into consideration the propriety of using the most efficient measures for taking possession of, and extending our authority and laws over the whole of the lands in controversy. Your committee, in the true spirit of liberality, and for the alone purpose of avoiding any difficulty or misunderstanding with either the General Government or the Cherokee Indians, would recom- mend to the People of Georgia to accept any treaty which may be made between the United States and those Indians, securing to this State so much of the lands in question, as may remain, after making reserves for a term of years, for life, or even in fee simple, to the use of particular Indians, not to exceed, in the aggregate, one-sixth part of the whole territory. But, if ail this will not do; if the United States will not redeem her pledged honor; and if the Indians will continue to turn a deaf ear to the voire of reason and of friendship ; we now solemnly warn them of the consequence. The lands in ques- tion belong to Georgia. She must, and she will have them. Influenced by the foregoing considerations, your committee beg leave to offer the following resolutions : Resolved, That the United States, in failing to procure the lands in controversy, "as early" as the same could be done upon *• peace- able" and " reasonable terms" have palpably violated their contract with Georgia, and are now bound, at all hazards, and without regard to terms, to procure said lands for the use of Georgia. Resolved, That the policy which has been pursued by the United States towards the Cherokee Indians, has not been in good faith to- ward Georgia, and that, as all the difficulties that now exist to an extinguishment of the Indian title, have resulted alone from the act3 and policy of the United States, it would be unjust and dishonorable in them to take shelter behind those difficulties. Resolved, That all the lands, appropriated and unappropriated, which lie within the conventional limits of Georgia, belong to her absolutely; that the title is in her; that the Indians are tenants at her will; and that she may at any time she pleases, determine that tenancy, by taking possession of the premises. And that Georgia has the right to extend her authority and laws over her whole terri- tory, and to coerce obedience to them from all descriptions of people, be they white, red, or black, who may reside within her limits. 18 [Doc. No. 2ii.] Resolved, That Georgia entertains for the General Government so high a regard, and is so solicitous to do no act that can disturb or tend to disturb the public tranquillity, that she will not attempt to enforce her rights by violence, until all other means of redress fail. Resolved, That, to avoid the catastrophe, which none would more sincerely deplore than ourselves, we make this solemn, this final, this last appeal to the President of the United States, that he take such steps as are usual, and as he may deem expedient and proper for the purpose of, and preparatory to, the holding of a treaty with the Che- rokee Indians, the object of which shall be the extinguishment of their title to all or any part of the lands, now in their possession, within the limits of Georgia. Resolved, That, if such treaty be held, the President be respectfully requested, to instruct the Commissioners to lay a copy of this report before the Indians in Convention, with such comments as may be con- sidered just and proper, upon the nature and extent of the Georgia title to the lands in controversy, and the probable consequences which will result from a continued refusal upon the part of the In- dians to part with those lands ; and that the Commissioners be also instructed to grant, if they find it absolutely necessary, reserves of land in favor of individual Indians or inhabitants of the nation, not to exceed one-sixth part of the territory to be acquired, the same to be subject to future purchase by the General Government, for the use of Georgia. Resolved, That his Excellency the Governor be requested to for- ward a copy of the foregoing report and resolutions to the President of the United States, and one to our Senators and Representatives in Congress, with a request that they use their best exertions to obtain the object therein expressed. Resolved, That the late proceedings of the Cherokee Indians, in framing a Constitution for their nation, and preparing to establish a Government, independent of Georgia, is inconsistent with the rights of said State, and therefore not recognized by this Government, and ought to be decidedly discountenanced by the General Government. Read, and agreed to : THOMAS STOCKS, President. Attest: Wm. Y. Hanskxl, Secretary. In the House of Representatives , 24 1 h December, 1827. Read, and concurred in. IRBY HUDSON, Speaker. Attest: Wm. C. Dawson, Clerk. Resolutions approved, December 27, 1827. JOHN FORSYTH, Governor. [Doc. No. 211.] 19 No. 4. Department of War, February 23, 1828. To Colonel Hugh Montgomery, Cherokee Agent, Calhoun, Tennessee: Sir : Official information having been received by the Depart- ment of the proceedings of the Cherokee Indians, in the formation of a Constitution, &c, the President directs that you converse with the Chiefs, and inform them, that he wishes them distinctly to under- stand that this act of theirs cannot be viewed in any other light than as regulations of a purely municipal character, and which he wishes them distinctly to understand will not be recognized as changing any one of the relations under which they stood to the Ge- neral Government, prior to the adoption of said Constitution. I have the honor to be, &c. JAMES BARBOUR. Extract of a leiter from Colonel McKenney to the Secretary of War, dated Department of War, Office Indian Affairs, 20th February, 1827. ** I respectfully submit to you the enclosed letter from the Cherokee Council to Colonel Montgomery, the Agent. I esteem it proper to do so. because you may think it desirable to hold a communication in regard to it with the President. " I think it much to be regretted that the idea of sovereignty should have taken such deep hold of these people. It is not possible for them to erect themselves into a state of such independence, and a separate and distinct Government; and the sooner they are enlightened on the subject. I think, the better. The most they can ever hope for, if they retain their possessions within the States, is to hold them under the laws of the States, as citizens. But to extend our Jaws over them now\ would be to the better half of even this most enlightened tribe, like building fires in all directions around the inexperienced infant, and leaving it to find its w 7 ay out through the faggots, by its own powers. " Out of this principle of sovereignty, these poor people reason them- selves into many delusions, as will be seen in their argument on the right to tax," &c w\ /