Hcport" on f4oT4"h-Carolinat/ f Chejnoke&i> V of tfje ®[mber£(it?of iSortf) Carolina Collection of Movti^ Caroliniana REPORT OF THE tliklaiJI €:^iiwwlttiri^ ON THE NORTH-CAROLIM CHEROKEES. RALEIGH: HOLDEN & WILSON, PRINTERS TO THE STATE. 1859. Digitized by tine Internet Arciiive in 2011 with funding from University of North Carolina at Chapel Hill http://www.archive.org/details/reportofjudiciarOOnort Doc. No. 75.] [Se8. 1858-'9. Ordered to he Printed. Holdeu & Wilson, Printers to the St.ite. REPORT OF THE COMMITTEE ON JUDICIARY. The i 'oaimittee on the Judiciary, to which was referred a bill to amend an act passed at the session of A. D., 1783, and which secured to the North-Carolina Cherokee Indians a per- manent home in the State, have had the same under consid- eration, and authorized the following report to be made there- on. The committee recommend striking out all after the enact- ing clause, and inserting amendment marked A. The bill, as amended, recognizes the right of the council of the North Carolina Cherokees to exercise police regnlationa over their own people to the extent exercised by incorporated towns and cities, agreeably tc the constitution and laws of the State, and confines the provisions of the act of 1783, to the lands owned by said Indians, and which they may acquire by purchase, adjacent to the hunting grounds reserved under the treaty of 1791, on the Iron or Smoky Mountain, in the nor- thern portion of Jackson and Macon Counties, including in the right to purchase, the widow and children of the late Jun- .aluska. It also makes provision for the escheated property of the Indians, to be applied, under the direction of the council, to the advancement of education and civilization among theijr people. The committee have deemed it proper to refer to an act and resolution passed by the General Assembly of the State of North-Carolina, in relation to those Indians, as well as to treaties concluded with their tribe, under which a large por- tion of their lands were ceded to the United States for thfi 2 Document Iso. 75. [Session "benefit of I^ortli-Carolina, and as construed and settled by the Supreme Court of I^^orth-Carolina, as well as by the acts of Congress of the United States, as expounded by the Attor- *Bey-General. By the. act of 1783, the State of North-Carolina not only acknowledges the title of the Cherokees to the lands claimed 'by them within her limits, but actually guaranteed the title for the purpose of securing to them a permanent home withm her limits. After reciting the boundary of the lands of the North-Carolina Cherokees, the act contains this guarantee of residence and title : " The lands contained within the afore- said bounds_ shall be, and are hereby reserved to the Cherokee Indians and their nation forever." In 1808, the tribe, as shown by the preamble to the treaty of 1817, be, and are di- l Vided into upper and lower towns, the former embracing the 'towns within the limits of the grant made to the Cherokees *'tinder the act of 1783. The upper towns, embracing the North- Carolina Cherokees, sent a deputation to Washington City, to represent to the President of the United States, tlie "desire of their people to " engage in the pursuits of agricul- '*ture and civilized life," and to remain permanently in the ■^country they tlien occupied, while the lower towns desired to remove West, " where game was more plenty." The Presi- dent of the United States, after maturely considering the pe- titions of both parties, on the 9th of January, 1809, answered the Cherokees as- follows : "Tlie United States, and the friends "of both parties, and as far as can be reasonably asked, are ' Villing to satisfy the wishes of both. Those who remain may '"'ke assured of our aid and good iieighTjorhood.'''' [See recital ia **%he preamble to the treaty of 1817.] During the war of 1812y ■fjie Creek tribe of Indians espoused the cause of Great Britain, "snd the Cherokees took up arms in behalf of the United States. At the battle of Horse Shoe, Capt. Junaluska, and his warriors, are lepresented as having fought bravely, and saved General Ja-kson's army from being cut off and massacred by the i0r -ek Indians. This led to the policy of circumscribing the limits of the North-Carolina Cherokees, to make room for the white settlements and allow them to become citizens. And 18o8-'9.] Docui^iENT No. 75. 3 the principal consideration, and the onlv one given by the State, was, acqniesence in the provisions of the 8th article of the treaty of 1817, extended by the 2nd article of the treaty of 1819. Under the 8th article, provision was made, not only to secure to the Cherokees a permanent home, but to elevate them to the high privilege of becoming citizens of the United States. "And to each and every head of an Indian family, residing on the East side of the Mississippi river, on the lands that are now, and may hereafter be surrendered to the United States, who may wish to become citizens of the United States, the United States agree to give a reservation of six hundred and forty acres of land, in a square, to include their improve- ments, which are to be as near the centre thereof as practica- ble, in which they will have a life estate, with a reversion itt fee simple to their children reserving to the widow her dowcT, the register of whose names is to be filed in the office of tha Cherokee Agent." [See Book of Indian Treaties, page 213.] Of the North-Carolina Cherokees now remaining east, a large portion is represented to have availed themselves of this privilege ; and Quallatown, in the county of Jackson, is rep- resented to be situated on one of those reservations granted to a Cherokee by the name of Jacob. In consequence of a part of the reservations not havinoj been located before the State's surveyors surveyed and sold out the territory acquired by the Cherokee treaty of 1817 and 1819, a conflict of title arose between the reservees and tlio purchasers of the State's title, which was finally decided hy the Supreme court of the State, wlien the right of the Indian to citizenship and to his reservation of land was sustained hj the court. (See decision, Euchella vs. Welch, 3rd Hawks, page 155.) In the opinion of the court, delivered by Chief Justice Taylor, it is stated " the prevalent policy before the revolu- tion was, to consider the Indians as persons capable of bein* treated with, and holding property as a tribe or nation. Tlieir right of property, though much circumscribed by the repeat- ed cessions they have made by treaty, was respected as to what remained, and much solicitude is shown in repeated en- actments to restrain the cupidity of the whites.'' 4: Document No. 75. [Session " In pursuance of this policy, the people of this State, when they throw off their colonial dependence, and declared the soil to be the property of the community, were not un- mindful of Indian rights : Provided always, that this declara- tion of right shall not prejudge any nation or nations of In- dians, from enjoying such hunting grounds as may have been Becured to them by any former or future Legislature of this State." Since the treaty of peace, by which the territorial limits of the State were acknowledged in full sovereignty, as they form- erly belonged to the mother country, it has b-.en the invaria- ble object of the United States, and of this State, to regulate their intercourse with the Indians, not by any speculative notions of right which they might have exercised without vio- lating any adn>itted principle, but by the dictates of a just and humane and liberal policy. * % -x- * -k- " Of the policy of this State, the act of 17S3, C. 185, under which the plaintiff claims title, affords a conclusive example. By this act it is declared that the Cherokee Indians shall have and enjoy all the tract of land therein described, and that is yeserved to them and their nation forever. The effect of this grant was, to vest the land in the nation in fee simple ; it con- veyed to them a specific and definite right, accoi'ding to which they were no longer to be considered as tenants at sufferance, but as holding under the faith of the State, and the guaran- tee of the declaration of rights.^ '^ * * " If this grant required confirmation, it has received it in the most ample manner by the treaty of Hopewell, 1785, made under the authority of the United States, and by the treaty of Ilolstein, 1791, b3>' which the lands not ceded by the Clie- rokee nation are solemnly guaranteed to them. " In this state of things the two treaties were made, under which the plaintiff claims the land described in the declara- tion as liaving been set off and allotted to him, and located according to the terms of the treaties, 1817 and 1819. "The eighth article of the first treaty provides that a reser- vation of six hundred and forty acres of land shall be given to every head of an Indian family residing on the east side of 1858-9.] Document No. 75. 5 the Mississippi river, the register of whose names sliall be filed in the office of the Clierokee agent. The land is to ])e laid ofi* in a square, including their improvements, which are to be as near the centre thereof as practicable, in which they will have a lite estate, with a reversion in fee, to their chil- dren, reserving to their widow her dower; by the second ar- ticle of the latter treaty, it is provided that a reservation of six hundred and forty acres of land shall be allowed to each head of an Indian family residing within the ceded territory, wlio choses to become a citizen of the United States, in the manner stipulated in said treaty. "The only manner stipulated in the treaty of ISIT is thafc the Indians wlio wish to become citizens sliall register their names in the office of the Cherokee agent. * * ■'^' "As the United States have alone the power of making ti-eaties, their acts within the limits of their authority must be obligatory on tlie State, tlieir constituent. They might, unquestionably, have extinguished the Indian title to the whole tract, in which case the right to the whole would have reverted to the State. Why then may they not extinguish the title to a part ? The stipulations of treaty are equally binding on both parties, and it was not to have been expected that an acquisition so valuable could have been made to the State without some equivalent. The reservations are more entitled to respect since they further the policy of the State, in leading the few Indians that remain to an agricultural and civihzed state." In 1835-'36, another treaty was concluded with the Chero- kees of Georgia, after the extension of the jurisdiction of the State over them, and it is represented that the North-Carolina Cherokees were neither present or parties to that treaty, and knowing their opposition to it, a clause was inserted, which appears to have been intended to reconcile that portion of the tribe to the cession of their lands, by extending to them the provisions of the treaties of 1817, and 1819, to permit such as were opposed to removal west, to reside permanently in the country. The article referred to, is in the following words : ^ Document IsTo. 76. [Session " Those individuals and families of tlie Cherokee nation, that are averse to a removal to the Cherokee country, west of the Mississippi, and are desirous to become citizens of the States, where they reside, and such as are qualified to take care of themselves and their property, shall he entitled to re- ceive their due portion of all the personal benefits accruing imder this treaty for their claims, improvements and per capita as soon as the appropriation is made." Shortly after the conclusion of the treaty, the ]!^orth-Caro- lina Cherokees, it is represented memorialized the General Assembly of Noi-th-Carolina, and represented therein, that it was their intention to remain permanently in their native country, subject to the laws of the State, and requested some law to be passed for their protection, to take effect after the removal of the Cherokees of Georgia was to have been com- pleted, under the provisions of the treaty. This i? presumed to have led to the passage of the following act: " Be it further enacted^ dtc, That all contracts of every nature and description, made after the eighteenth of May, one thousand and eight hundred and thirty-eight, with any Cherokee Indian, or any person of Cherokee Indian blood, within the second degree, for an amount equal to ten dollars ©r more, shall be null and void, unless some memorandum thereof be made in writing, and signed by such Indian or iome person by him authorized in the presence of two credit- able witnesses who shall also subscribe the same. (See act of 1836-37.) In consequence of the Federal Government having failed to extend to the i^^orth-Carolina Cherokees all the personal benefits of the treaty of 1835-'6, application was made to the General xVssembly for the passage of a resolution in their fa- vor, which received the unanimous approval of both Houses. RESOLUTIONS EELATING TO THE CHEKOKEE INDIANS. ^^ HesoJved, Tluit our Senators and Representatives in Con- gress of the United Srates. are hei-eby requested to use their influence in favoi* of obtaining a settlement of the just claims €f the Cherdkee Indians residing in this State, &c. 1858-'9.] Document No. 75. K " Resolved further^ That his Excellency, the Governor, be requested to send a copy of the foregoing resolutions to our Senators and Representatives in Congress. " Read three times in the General Assembly, and ratified the 8th of January, 1846." EDWARD STAKLY, Speaker of the Commons. BURGESS S. GATHER, Speaker of the Senate. After tiiis, an appeal in favor of the Xorth-Carolina Chero- kees was made to the President of the United States, wb(\ referred the subject to the Attorney General, who on the 19tli of Septeml)er, 1848, among other subjects, gave the follow- ing opi)iion on a question submitted by the Pi-esident of tli© United States. " 3. Whether the treaty of 1835, made witlj^ the Cherokee Indians of Georgia, does or does not convey ta> the United States the lands granted to the Xorth-Carolina In- dians by the act of 1783 ; whether the powers of the Chero- kees as a nation had, or had not, ceased to exist at the tinie^ the treaty of December, 1835, was concluded, in consequence ot the tribe having passed under the dominion of the State.'^j The other three questions may be solved into three inquiries;. Whether the lands in North-Carohna belonged to the North- Carolina Indians residing on them, these lands have been sold by the State of North-Carolina, and are, I presume, ii^ the possession of the purchasers. As the Executive of the. United States would have no power to divest those in posses- sion, and the question is one for the judiciary, I have deem- ed it necessary to express my views upon the hard measures which seem to have been dealt out to the North-.Cai-olina In- dians, whose lands have been sold while they have received no corresponding benefit. (See oj)inion of the Hon. Jno. Y. Mason of the 19th of December, 1845.) In 1850, the North-Carolina Cherokees were embi-aced ia the census, and formed a part of the population of this State, and of the United States, on which the members in tlie Gen- eral Assembly and in Congress were apportioned. (^See cen- sus on file in the State Department.) 8 Document T^To. 75. [Session Subsequently, the Commissioner of Indian Affairs, raised the question as to the right of the Government to affect the right of the North-Carolina Cherokees to remain in their na- tive country, by witholding the payment of money due to them, which was referred to the Attorney-General of the II. States for his opinion thereon. The quotation from the argu- ment in their favor, and the decision of the Attorney-General, serve to explain the attachment of these Indians to their na- tive country, and their right to remain under the provisions of the treaties. In speaking of the condition of the North-Carolina Chero- kees, and the country occupied by them, it is stated — "That country is endeared to those Indians by the graves and sacred relics of their ancestors ; the bones of their child- ren, sisters, brothers, fathers, and mothers, lie there ; they •ay, "We cannot leave them ; let us alone in the land of our Withers. Why ask us to remove West ? We once owned all •tiie land that could be seen from the tops of our highest moun- lains ; vrill you not permit us to enjoy in peace the small quantity we have purchased ?" They ask, "Where are our brothers, who were forced from the mountains of North- Carolina? Two-thirds have been buried on the road to Ark- ansas, and in that sickly country. Where are the Ridges and Boudinots, who were promised the protection of the United States ? Have the}- not been massacred ? Their blood cries from the ground. Where are the midnight assassins? Have they not been pardoned by the Cherokee Government, with- ont trial, contrary to both law and treaties? Will you then fffik us to remove, and join a Government too weak and too Bnjust to protect us, and leave a State where our lives, liberties, and property, are secured ? — where our rights to re- main are guarantied by solemn treaties ?" " ' Fortunate for the Indians, in the office of the Attorney-Gen- eral was found too high a regard for justice, and the sacred ob- ligations of ti*eaties to favor the policy proposed by the reputed Father of the red man of the forest, as the opinion demon- strates : " Question fourth : ' If any of the Cherokees who have not 1858-'9.] Document No. 75. 9 removed west of the Mississippi river are entitled, may they be required to emigrate, as a condition precedent to their be- ing paid V Answer : The treaty of 1835, article twelve, con- ceded the rights of individuals and families of Cherokees, who were averse to the removal to the Cherokee country, west of the Mississippi, to remain east, and to receive their due por- tions of the money, to be distributed per capita. The treaty of 1846, article ten, recognized these claims of the Cherokees then, at the date of the treaty, residing east of the Mississippi river. On this subject I have hereinbefore expressed my views. To require these Indians, so residing east of the river Mississippi at the date of the treaty of August, 181:6, to re- move to the Cherokee country west, as a condition precedent to their being paid their dividend jP^'r capita of the balance of the purchase money for the lands east of the Mississippi river, ceded by their nation to the United States, would be without any authority of law, and a breach of the faith of the treaties of 1835 and 1846, as I think and tirmly beheve." Very respectfully, yours, &c., JOHN J. CRITTENDEN. April 11, 1851. Under the administration of President Buchanan, the poli- cy of the federal government in relation to the Indian tribes has undergone a change, and instead of removing the Indians from place to place, the policy now is to permit them perma- nently to remain in those localities to which the associations of their youth and the graves of their sires so much attach them, and, where they may, by the association and moral in- fluence of refinement, gradually emerge from savage into civilized life. Under these circumstances, it is not probable that the State of North Carolina would, at any time, violate her plighted faith to the North Carolina Cherokees in permit- ting them to remain permanently in their native country ; but, if a different policy should at any time prevail, then the Cherokees would have the right to appeal to the Supreme Court of the United States to enforce their rights to perma- nent residence as guaranteed by the treaties of 1817, 1819 10 Document Ko. 75. [1858-'9. and 1855, and it would very probably result in an application to the Supreme Court of the United States, which has jurisdic- tion of all questions arising under treaties, and the result might not only prove injurious to the purchaser of the State's title, but in the end, injurious to the State. For the reasons herein contained, to which the committee have given much investigation, they instruct me to report the accompanying bill and recommend its passage. WM. J. HOUSTON, Chairman of Committee. UNIVERSITY OF ^.C. AT CHAPEL HILL 00032203712 FOR USE ONLY IN ^HE NORTH CAROLINA COLLECTION