A writ of error was issued to "The Judges of the Superior Court
for the County of Gwinett in the State of Georgia" commanding them
to send to the Supreme Court of the United States the record and
proceedings in the said Superior Court of the County of Gwinett,
between the State of Georgia, plaintiff, and Samuel A. Worcester,
defendant, on an indictment in that Court. The record of the Court
of Gwinnett was returned, certified by the clerk of the Court, and
was also authenticated by the seal of the Court. It was returned
with, and annexed to, a writ of error issued in regular form, the
citation being signed by one of the Associate Justices of the
Supreme Court and served on the Governor and Attorney General of
the State more than thirty days before the commencement of the term
to which the writ of error was returnable.
By the Court: The Judicial Act, so far as it prescribes the mode
of proceeding, appears to have been literally pursued. In February,
1979, a rule was made on this subject in the following words:
"It is ordered by the Court that the clerk of the Court to which
any writ of error shall be directed may make return of the same by
transmitting a true copy of the record, and of all proceedings in
the same, under his hand and the seal of the Court."
This has been done. But the signature of the judge has not been
added to that of the clerk. The law does not require it. The rule
does not require it.
The plaintiff in error was indicted in the Supreme Court for the
County of Gwinnett in the State of Georgia,
"For residing, on the 15th July, 1831, in that part of the
Cherokee Nation attached by the laws of the State of Georgia to
that County, without a license or permit from the Governor of the
State, or from anyone authorized to grant it, and without having
taken the oath to support and defend the Constitution and laws of
the State of Georgia, and uprightly to demean himself as a citizen
thereof, contrary to the laws of the said State."
To this indictment he pleaded that he was, on the 15th July,
1831, in the Cherokee Nation, out of the jurisdiction of the Court
of Gwinnett County; that he was a citizen of Vermont, and entered
the Cherokee Nation as a missionary under the authority of the
President of the United States, and has not been required by him to
leave it, and that, with the permission and approval of the
Cherokee Nation, he was engaged in preaching the gospel; that the
State of Georgia ought not to maintain the prosecution, as several
treaties had been entered into by the United States with the
Cherokee Nation by which that Nation was acknowledged to be a
sovereign nation, and by which the territory occupied by them was
guaranteed to them by the United States; and that the laws of
Georgia under which the plaintiff in error was indicted are
repugnant to the treaties, and unconstitutional and void, and also
that they are repugnant to the treaties, and unconstitutional and
void, and also that they are repugnant to the Act of Congress of
March, 1802, entitled "An act to regulate trade and intercourse
with the Indian Tribes." The Superior Court of Gwinnet overruled
the plea, and the plaintiff in error was tried and convicted, and
sentenced "to hard labour in the penitentiary for four years."
Held, that this was a case in which the Supreme Court of
the United States had jurisdiction by writ of error under
Page 31 U. S. 516
the twenty-fifth section of the "Act to establish the Judicial
Courts of the United States," passed in 1789.
The indictment and plea in this case draw in question the
validity of the treaties made by the United States with the
Cherokee Indians; if not so, their construction is certainly drawn
in question, and the decision has been, if not against their
validity, "against the right, privilege, or exemption specifically
set up and claimed under them." They also draw into question the
validity of a statute of the State of Georgia
"On the ground of its being repugnant to the Constitution,
treaties, and laws of the United States, and the decision is in
favour of its validity."
It is too clear for controversy that the Act of Congress by
which this Court is constituted has given it the power, and of
course imposed on it the duty, of exercising jurisdiction in this
case. The record, according to the Judiciary Act and the rule and
practice of the Court, is regularly before the Court.
The act of the Legislature of Georgia passed 22d December, 1830,
entitled "An act to prevent the exercised of assumed and arbitrary
power by all persons under pretext of authority from the Cherokee
Indians," &c., enacts that
"All white persons residing within the limits of the Cherokee
Nation on the 1st day of March next, or at any time thereafter,
without a license or permit from his Excellency the Governor, or
from such agent as his Excellency the Governor shall authorize to
grant such permit or license, and who shall not have taken the oath
hereinafter required, shall be guilty of a high misdemeanor, and,
upon conviction thereof, shall be punished by confinement to the
penitentiary at hard labour for a term not less than four
years."
The eleventh section authorizes the Governor,
"Should he deem it necessary for the protection of the mines or
the enforcement of the laws in force within the Cherokee Nation, to
raise and organize a guard,"
&c. The thirteenth section enacts
"That the said guard, or any members of them, shall be, and they
are hereby, authorized and empowered to arrest any person legally
charged with or detected in a violation of the laws of this State,
and to convey, as soon as practicable, the person so arrested
before a justice of the peace, judge of the Superior, justice of
Inferior Court of this State, to be dealt with according to
law."
The extraterritorial power of every legislature being limited in
its action to its own citizens or subjects, the very passage of
this act is an assertion of jurisdiction over the Cherokee Nation,
and of the rights and powers consequent thereto.
The principle
"that discovery of parts of the continent of America gave title
to the government by whose subjects, or by whose authority it was
made, against all other European governments, which title might be
consummated by possession,"
acknowledged by all Europeans because it was the interest of all
to acknowledge it, gave to the nation making the discovery, as its
inevitable consequence, the sole right of acquiring the soil and
making settlements on it. It was an exclusive principle which shut
out the right of competition among those who had agreed to it, not
one of which could annul the previous rights of those who had not
agreed to it. It regulated the right given by discovery among the
European discoverers, but could not affect the rights of those
already in possession, either as aboriginal occupants or as
occupants by virtue of a discovery made before the memory of man.
It gave the exclusive right to purchase, but did not found that
right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was
determined in each case by the particular government which asserted
and could maintain this
Page 31 U. S. 517
preemptive privilege in the particular place. The United States
succeeded to all the claims of Great Britain, both territorial and
political, but no attempt, so far as it is known, has been made to
enlarge them. So far as they existed merely in theory, or were in
their nature only exclusive of the claims of other European
nations, they still retain their original character, and remain
dormant. So far as they have been practically exerted, they exist
in fact, are understood by both parties, are asserted by the one,
and admitted by the other.
Soon after Great Britain determined on planting colonies in
America, the King granted charters to companies of his subjects who
associated for the purpose of carrying the views of the Crown into
effect, and of enriching themselves. The first of these charters
was made before possession was taken of any part of the country.
They purport generally to convey the soil, from the Atlantic to the
South Sea. The soil was occupied by numerous and warlike nations,
equally willing and able to defend their possessions. The
extravagant and absurd idea that the feeble settlements made on the
seacoast, or the companies under whom they were made, acquired
legitimate power by them to govern the people, or occupy the lands
from sea to sea, did not enter the mind of any man. They were well
understood to convey the title which, according to the common law
of European sovereigns respecting America, they might rightfully
convey, and no more. This was the exclusive right of purchasing
such lands as the natives were willing to sell. The Crown could not
be understood to grant what the Crown did not affect to claim, nor
was it so understood.
Certain it is that our history furnishes no example, from the
first settlement of our country, of any attempt, on the part of the
Crown, to interfere with the internal affairs of the Indians
farther than to keep out the agents of foreign powers who, as
traders or otherwise, might seduct them into foreign alliances. The
King purchased their lands when they were willing to sell, at a
price they were willing to take, but never coerced a surrender of
them. He also purchased their alliance and dependence by subsidies,
but never intruded into the interior of their affairs or interfered
with their self-government so far as respected themselves only.
The third article of the treaty of Hopewell acknowledges the
Cherokees to be under the protection of the United States of
America, and of no other power.
This stipulation is found in Indian treaties generally. It was
introduced into their treaties with Great Britain, and may probably
be found in those with other European powers. Its origin may be
traced to the nature of their connexion with those powers, and its
true meaning is discerned in their relative situation.
The general law of European sovereigns respecting their claims
in America limited the intercourse of Indians, in a great degree,
to the particular potentate whose ultimate right of domain was
acknowledged by the others. This was the general state of things in
time of peace. It was sometimes changed in war. The consequence was
that their supplies were derived chiefly from that nation, and
their trade confined to it. Goods, indispensable to their comfort,
in the shape of presents, were received from the same hand. What
was of still more importance, the strong hand of government was
interposed to restrain the disorderly and licentious from intrusion
into their country, from encroachments on their lands, and from the
acts of violence which were often attended by reciprocal murder.
The Indians perceived in this protection only what was beneficial
to themselves -- an engagement to punish aggressions on them. It
involved practically no claim to their lands, no dominion over
their persons.
Page 31 U. S. 518
It merely bound the Nation to the British Crown as a dependent
ally, claiming the protection of a powerful friend and neighbour
and receiving the advantages of that protection without involving a
surrender of their national character.
This is the true meaning of the stipulation, and is undoubtedly
the sense in which it was made. Neither the British Government nor
the Cherokees ever understood it otherwise.
The same stipulation entered into into with the United States is
undoubtedly to be construed in the same manner They receive the
Cherokee Nation into their favour and protection. The Cherokees
acknowledge themselves to be under the protection of the United
States, and of no other power. Protection does not imply the
destruction of the protected. The manner in which this stipulation
was understood by the American Government is explained by the
language and acts of our first President.
So with respect to the words "hunting grounds." Hunting was, at
that time, the principal occupation of the Indians, and their land
was more used for that purpose than for any other. It could not,
however, be supposed that any intention existed of restricting the
full use of the lands they reserved.
To the United States, it could be a matter of no concern whether
their whole territory was devoted to hunting grounds or whether an
occasional village and an occasional cornfield interrupted, and
gave some variety, to the scene.
These terms had been used in their treaties with Great Britain,
and had never been misunderstood. They had never been supposed to
imply a right in the British Government to take their lands or to
interfere with their internal government.
The sixth and seventh articles stipulate for the punishment of
the citizens of either country who may commit offences on or
against the citizens of the other. The only inference to be drawn
from them is that the United States considered the Cherokees as a
nation.
The ninth article is in these words:
"For the benefit and comfort of the Indians, and for the
prevention of injuries or oppressions on the part of the citizens
or Indians, the United States, in Congress assembled, shall have
the sole and exclusive right of regulating the trade with the
Indians and managing all their affairs as they think proper."
To construe the expression "managing all their affairs" into a
surrender of self-government would be a perversion of their
necessary meaning, and a departure from the construction which has
been uniformly put on them. The great subject of the article is the
Indian trade. The influence it gave made it desirable that Congress
should possess it. The commissioners brought forward the claim with
the profession that their motive was "the benefit and comfort of
the Indians and the prevention of injuries or oppressions." This
may be true as respects the regulation of their trade and as
respects the regulation of all affairs connected with their trade,
but cannot be true as respects the management of their affairs. The
most important of these is the cession of their lands and security
against intruders on them. Is it credible that they could have
considered themselves as surrendering to the United States the
right to dictate their future cessions and the terms on which they
should be made, or to compel their submission to the violence of
disorderly and licentious intruders? It is equally inconceivable t
hat they could have supposed themselves, by a phrase thus slipped
into an article on another and mere interesting subject, to have
divested themselves of the right of self-government on subjects not
connected with trade. Such a measure could not be
Page 31 U. S. 519
"for their benefit and comfort," or for "the prevention of
injuries and oppression." Such a construction would be inconsistent
with the spirit of this and of all subsequent treaties, especially
of those articles which recognise the right of the Cherokees to
declare hostilities and to make war. It would convert a treaty of
peace covertly into an act annihilating the political existence of
one of the parties. Had such a result been intended, it would have
been openly avowed.
This treaty contains a few terms capable of being used in a
sense which could not have been intended at the time, and which is
inconsistent with the practical construction which has always been
put on them; but its essential articles treat the Cherokees as a
nation capable of maintaining the relations of peace and war, and
ascertain the boundaries between them and the United States.
The Treaty of Holston, negotiated with the Cherokees in July,
1791, explicitly recognising the national character of the
Cherokees and their right of self-government, thus guarantying
their lands, assuming the duty of protection, and of course
pledging the faith of the United States for that protection, has
been frequently renewed, and is now in full force.
To the general pledge of protection have been added several
specific pledges deemed valuable by the Indians. Some of these
restrain the citizens of the United States from encroachments on
the Cherokee country, and provide for the punishment of
intruders.
The treaties and laws of the United States contemplate the
Indian territory as completely separated from that of the States,
and provide that all intercourse with them shall be carried on
exclusively by the Government of the Union.
The Indian nations had always been considered as distinct,
independent political communities retaining their original natural
rights as undisputed possessors of the soil, from time immemorial,
with the single exception of that imposed by irresistible power,
which excluded them from intercourse with any other European
potentate than the first discoverer of the coast of the particular
region claimed, and this was a restriction which those European
potentates imposed on themselves, as well as on the Indians. The
very term "nation," so generally applied to them, means "a people
distinct from others." The Constitution, by declaring treaties
already made, as well as those to be made, to be the supreme law of
the land, has adopted and sanctioned the previous treaties with the
Indian nations, and consequently admits their rank among the powers
who are capable of making treaties. The words "treaty" and "nation"
are words of our own language, selected in our diplomatic and
legislative proceedings by ourselves, having each a definite and
well understood meaning. We have applied them to Indians as we have
applied them to the other nations of the earth. They are applied to
all in the same sense.
Georgia herself has furnished conclusive evidence that her
former opinions on this subject concurred with those entertained by
her sister states, and by the Government of the United States.
Various acts of her legislature have been cited in the argument,
including the contract of cession made in the year 1802, all
tending to prove her acquiescence in the universal conviction that
the Indian nations possessed a full right to the lands they
occupied until that right should be extinguished by the United
States with their consent; that their territory was separated from
that of any State within whose chartered limits they might reside
by a boundary line established by treaties; that, within their
boundary, they possessed rights with which no state could
interfere; and that the whole power of regulating the intercourse
with them was vested in the United States.
Page 31 U. S. 520
In opposition to the original right, possessed by the undisputed
occupants of every country, to this recognition of that right,
which is evidenced by our history in every change through which we
have passed, are placed the charters granted by the monarch of a
distant and distinct region parceling out a territory in possession
of others, whom he could not remove and did not attempt to remove,
and the cession made of his claims by the treaty of peace. The
actual state of things at the time, and all history since, explain
these charters, and the King of Great Britain, at the treaty of
peace, could cede only what belonged to his crown. These newly
asserted titled can derive no aid from the articles so often
repeated in Indian treaties, extending to them, first, the
protection of Great Britain, and afterwards that of the United
States. These articles are associated with others recognising their
title to self-government. The very fact of repeated treaties with
them recognises it, and the settled doctrine of the law of nations
is that a weaker power does not surrender its independence -- its
right to self-government -- by associating with a stronger and
taking protection. A weak state, in order to provide for its
safety, may place itself under the protection of one more powerful
without stripping itself of the right of government and ceasing to
be a state. Examples of this kind are not wanting in Europe.
"Tributary and feudal states," says Vattel,
"do not thereby cease to be sovereign and independent states so
long as self-government and sovereign and independent authority are
left in the administration of the state."
At the present day, more than one state may be considered as
holding its right to self-government under the guarantee and
protection of one or more allies.
The Cherokee nation, then, is a distinct community, occupying
its own territory, with boundaries accurately described, in which
the laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter but with the assent of the Cherokees
themselves, or in conformity with treaties and with the acts of
Congress. The whole intercourse between the United States and this
nation is, by our Constitution and laws, vested in the Government
of the United States.
The act of the State of Georgia under which the plaintiff in
error was prosecuted is consequently void, and the judgment a
nullity.
The acts of the Legislature of Georgia interfere forcibly with
the relations established between the United States and the
Cherokee Nation, the regulation of which, according to the settled
principles of our Constitution, is committed exclusively to the
Government of the Union.
They are in direct hostility with treaties, repeated in a
succession of years, which mark out the boundary that separates the
Cherokee country from Georgia; guaranty to them all the land within
their boundary; solemnly pledge the faith of the United States to
restrain their citizens from trespassing on it; and recognise the
preexisting power of the Nation to govern itself.
They are in equal hostility with the acts of Congress for
regulating this intercourse and giving effect to the treaties.
The forcible seizure and abduction of the plaintiff in error,
who was residing in the Nation with its permission and by authority
of the President of the United States, is also a violation of the
acts which authorize the Chief Magistrate to exercise his
authority.
Will these powerful considerations avail the plaintiff in error.
We think they will. He was seized and forcibly carried away while
under guardianship of treaties guarantying the country in which he
resided and taking it under the protection of the United States. He
was seized while performing, under the
Page 31 U. S. 521
sanction of the Chief Magistrate of the Union, those duties
which the humane policy adopted by Congress had recommended. He was
apprehended, tried, and condemned under colour of a law which has
been shown to be repugnant to the Constitution, laws, and treaties
of the United States. Had a judgment liable to the same objections
been rendered for property, none would question the jurisdiction of
this Court. It cannot be less clear when the judgment affects
personal liberty and inflicts disgraceful punishment -- if
punishment could disgrace when inflicted on innocence. The
plaintiff in error is not less interested in the operation of this
unconstitutional law than if it affected his property. He is not
less entitled to the protection of the Constitution, laws, and
treaties of his country.,
This was a writ of error to the superior court for the county of
Gwinnett, in the state of Georgia.
On the 22d December 1830, the legislature of the state of
Georgia passed the following act:
"An act of prevent the exercise of assumed and arbitrary power,
by all persons, under pretext of authority from the Cherokee
Indians and their laws, and to prevent white persons from residing
within that part of the chartered limits of Georgia occupied by the
Cherokee Indians, and to provide a guard for the protection of the
gold mines, and to enforce the laws of the state within the
aforesaid territory."
"Be it enacted by the Senate and House of Representatives of the
State of Georgia in general assembly met, and it is hereby enacted
by the authority of the same, that, after the 1st day of February
1831, it shall not be lawful for any person or persons, under
colour or pretence of authority from said Cherokee tribe, or as
headmen, chiefs or warriors of said tribe, to cause or procure by
any means the assembling of any council or other pretended
legislative body of the said Indians or others living among them,
for the purpose of legislating (or for any other purpose whatever).
And persons offending against the provisions of this section shall
guilty of a high misdemeanour, and subject to indictment therefor,
and, on conviction, shall be punished by confinement at hard labour
in the penitentiary for the space of four years."
"Sec. 2. And be it further enacted by the authority aforesaid,
that, after the time aforesaid, it shall not be lawful for any
person or persons, under pretext of authority from the Cherokee
tribe, or as representatives, chiefs, headmen or warriors of said
tribe, to meet or assemble as a council, assembly,
Page 31 U. S. 522
convention, or in any other capacity, for the purpose of making
laws, orders or regulations for said tribe. And all persons
offending against the provisions of this section shall be guilty of
a high misdemeanour, and subject to an indictment, and, on
conviction thereof, shall undergo an imprisonment in the
penitentiary at hard labour for the space of four years."
"Sec. 3. And be it further enacted by the authority aforesaid,
that, after the time aforesaid, it shall not be lawful for any
person or persons, under colour or by authority of the Cherokee
tribe, or any of its laws or regulations, to hold any court or
tribunal whatever for the purpose of hearing and determining
causes, either civil or criminal, or to give any judgment in such
causes, or to issue, or cause to issue, any process against the
person or property of any of said tribe. And all persons offending
against the provisions of this section shall be guilty of a high
misdemeanour, and subject to indictment, and, on conviction
thereof, shall be imprisoned in the penitentiary at hard labour for
the space of four years."
"Sec. 4. And be it further enacted by the authority aforesaid
that, after the time aforesaid, it shall not be lawful for any
person or persons, as a ministerial officer, or in any other
capacity, to execute any precept, command or process issued by any
court or tribunal in the Cherokee tribe, on the persons or property
of any of said tribe. And all persons offending against the
provisions of this section shall be guilty of a trespass, and
subject to indictment, and, on conviction thereof, shall be
punished by fine and imprisonment in the jail or in the
penitentiary, not longer than four years, at the discretion of the
court."
"Sec. 5. And be it further enacted by the authority aforesaid
that, after the time aforesaid, it shall not be lawful for any
person or persons to confiscate, or attempt to confiscate, or
otherwise to cause a forfeiture of the property or estate of any
Indian of said tribe in consequence of his enrolling himself and
family for emigration, or offering to enroll for emigration, or any
other act of said Indian in furtherance of his intention to
emigrate. And persons offending against the provisions of this
section shall be guilty of high misdemeanour, and, on conviction,
shall undergo an imprisonment in the penitentiary at hard labour
for the space of four years. "
Page 31 U. S. 523
"Sec. 6. And be it further enacted by the authority aforesaid
that none of the provisions of this act shall be so construed as to
prevent said tribe, its headmen, chiefs or other representatives,
from meeting any agent or commissioner on the part of this State or
the United States for any purpose whatever."
"Sec. 7. And be it further enacted by the authority aforesaid
that all white persons residing within the limits of the Cherokee
Nation, on the 1st day of March next, or at any time thereafter,
without a license or permit from his Excellency the Governor, or
from such agent as his Excellency the Governor shall authorise to
grant such permit or license, and who shall not have taken the oath
hereinafter required, shall be guilty of a high misdemeanour, and,
upon conviction thereof, shall be punished by confinement to the
penitentiary at hard labour for a term not less than four years:
provided, that the provisions of this section shall not be so
construed as to extend to any authorised agent or agents of the
Government of the United States or of this State, or to any person
or persons who may rent any of those improvements which have been
abandoned by Indians who have emigrated west of the Mississippi;
provided, nothing contained in this section shall be so construed
as to extend to white females, and all male children under
twenty-one years of age."
"Sec. 8. And be it further enacted by the authority aforesaid,
that all white persons, citizens of the State of Georgia, who have
procured a license in writing from his Excellency the Governor, or
from such agent as his Excellency the Governor shall authorise to
grant such permit or license, to reside within the limits of the
Cherokee Nation, and who have taken the following oath,
viz., 'I, A.B., do solemnly swear (or affirm, as the case
may be) that I will support and defend the Constitution and laws of
the State of Georgia, and uprightly demean myself as a citizen
thereof, so help me God,' shall be, and the same are hereby
declared exempt and free from the operation of the seventh section
of this act."
"Sec. 9. And be it further enacted that his Excellency the
Governor be, and he is hereby, authorized to grant licenses to
reside within the limits of the Cherokee Nation, according to the
provisions of the eighth section of this act."
"Sec. 10. And be it further enacted by the authority
aforesaid
Page 31 U. S. 524
that no person shall collect or claim any toll from any person
for passing any turnpike gate or toll bridge by authority of any
act or law of the Cherokee tribe, or any chief or headman or men of
the same."
"Sec. 11. And be it further enacted by the authority aforesaid
that his Excellency the Governor be, and he is hereby, empowered,
should he deem it necessary, either for the protection of the mines
or for the enforcement of the laws of force within the Cherokee
Nation, to raise and organize a guard, to be employed on foot, or
mounted, as occasion may require, which shall not consist of more
than sixty persons, which guard shall be under the command of the
commissioner or agent appointed by the Governor, to protect the
mines, with power to dismiss from the service any member of said
guard, on paying the wages due for services rendered, for
disorderly conduct, and make appointments to fill the vacancies
occasioned by such dismissal."
"Sec. 12. And be it further enacted by the authority aforesaid,
that each person who may belong to said guard, shall receiver for
his compensation at the rate of fifteen dollars per month when on
foot, and at the rate of twenty dollars per month when mounted, for
every month that such person is engaged in actual service; and, in
the event, that the commissioner or agent, herein referred to,
should die, resign, or fail to perform the duties herein required
of him, his Excellency the Governor is hereby authorised and
required to appoint, in his stead, some other fit and proper person
to the command of said guard; and the commissioner or agent, having
the command of the guard aforesaid, for the better discipline
thereof, shall appoint three sergeants, who shall receive at the
rate of twenty dollars per month while serving on foot, and
twenty-five dollars per month, when mounted, as compensation whilst
in actual service."
"Sec. 13. And be it further enacted by the authority aforesaid
that the said guard, or any member of them, shall be, and they are
hereby, authorised and empowered to arrest any person legally
charged with, or detected in, a violation of the laws of this
State, and to convey, as soon as practicable, the person so
arrested before a justice of the peace, judge of the superior or
justice of inferior court of this State, to be dealt
Page 31 U. S. 525
with according to law; and the pay and support of said guard be
provided out of the fund already appropriated for the protection of
the gold mines."
The legislature of Georgia, on the 19th December 1829, passed
the following act:
"An act to add the territory lying within the chartered limits
of Georgia, and now in the occupancy of the Cherokee Indians, to
the counties of Carroll, De Kalb, Gwinnett, Hall, and Habersham,
and to extend the laws of this State over the same, and to annul
all laws and ordinances made by the Cherokee Nation of Indians, and
to provide for the compensation of officers serving legal process
in said territory, and to regulate the testimony of Indians, and to
repeal the ninth section of the act of 1828 upon this subject."
"Sec. 1. Be it enacted by the senate and house of
representatives of the State of Georgia in general assembly met,
and it is hereby enacted by the authority of the same, that, from
and after the passing of this Act, all that part of the unlocated
territory within the limits of this State, and which lies between
the Alabama line and the old path leading from the Buzzard Roost on
the Chattahoochee, to Sally Hughes', on the Hightower River; thence
to Thomas Pelet's on the old federal road; thence with said road to
the Alabama line be, and the same is hereby added to, and shall
become a part of, the County of Carroll."
"Sec. 2. And be it further enacted that all that part of said
territory lying and being north of the last mentioned line and
south of the road running from Charles Gait's ferry, on the
Chattahoochee River, to Dick Roe's, to where it intersects with the
path aforesaid, be, and the same is hereby added to, and shall
become a part of, the County of De Kalb."
"Sec. 3. And be it further enacted,that all that part of the
said territory lying north of the last mentioned line and south of
a line commencing at the mouth of Baldridge's Creek; thence up said
creek to its source; from thence to where the federal road crosses
the Hightower; thence with said road to the Tennessee line, be, and
the same is hereby added to, and shall become part of, the County
of Gwinnett."
"Sec. 4. And be it further enacted that all that part of the
said territory lying north of said last mentioned line and
south
Page 31 U. S. 526
of a line to commence on the Chestatee River, at the mouth of
Yoholo Creek; thence up said creek to the top of the Blue ridge;
thence to the head waters of Notley River; thence down said river
to the boundary line of Georgia, be, and the same is hereby added
to, and shall become a part of, the County of Hall."
"Sec. 5. And be it further enacted that all that part of said
territory lying north of said last mentioned line, within the
limits of this State, be, and the same is hereby added to, and
shall become a part of, the County of Habersham."
"Sec. 6. And be it further enacted, that all the laws, both
civil and criminal, of this State, be, and the same are hereby,
extended over said portions of territory, respectively; and all
persons whatever, residing within the same, shall, after the 1st
day of June next, be subject and liable to the operation of said
laws in the same manner as other citizens of this State, or the
citizens of said counties, respectively, and all writs and
processes whatever, issued by the courts or officers of said
courts, shall extend over, and operate on, the portions of
territory hereby added to the same, respectively."
"Sec. 7. And be it further enacted that, after the 1st day of
June next, all laws, ordinances, orders and regulations, of any
kind whatever, made, passed or enacted, by the Cherokee Indians,
either in general council or in any other way whatever, or by any
authority whatever of said tribe, be, and the same are hereby
declared to be, null and void, and of no effect, as if the same had
never existed, and, in all cases of indictment or civil suits, it
shall not be lawful for the defendant to justify under any of said
laws, ordinances, orders or regulations; nor shall the courts of
this State permit the same to be given in evidence on the trial of
any suit whatever."
"Sec. 8. And be it further enacted that it shall not be lawful
for any person or body of persons, by arbitrary power or by virtue
of any pretended rule, ordinance, law or custom of said Cherokee
Nation, to prevent by threats, menaces or other means, or endeavour
to prevent, any Indian of said Nation residing within the chartered
limits of this State, from enrolling as an emigrant, or actually
emigrating or removing from said nation; nor shall it be lawful for
any person or body of persons, by arbitrary power or by virtue of
any pretended rule,
Page 31 U. S. 527
ordinance, law or custom of said nation, to punish, in any
manner, or to molest either the person or property, or to abridge
the rights or privileges of any Indian, for enrolling his or her
name as an emigrant, or for emigrating or intending to emigrate,
from said nation."
"Sec. 9. And be it further enacted that any person or body of
persons offending against the provisions of the foregoing section
shall be guilty of a high misdemeanour, subject to indictment, and
on conviction shall be punished by confinement in the common jail
of any county of this State, or by confinement at hard labour in
the penitentiary, for a term not exceeding four years, at the
discretion of the court."
"Sec. 10. And be it further enacted that it shall not be lawful
for any person or body of persons, by arbitrary power, or under
colour of any pretended rule, ordinance, law or custom of said
nation, to prevent or offer to prevent, or deter any Indian
headman, chief or warrior of said nation, residing within the
chartered limits of this State, from selling or ceding to the
United States, for the use of Georgia, the whole or any part of
said territory, or to prevent or offer to prevent, any Indian,
headman, chief or warrior of said nation, residing as aforesaid,
from meeting in council or treaty any commissioner or commissioners
on the part of the United States, for any purpose whatever."
"Sec. 11. And be it further enacted, that any person or body of
persons offending against the provisions of the foregoing sections,
shall be guilty of a high misdemeanour, subject to indictment, and
on conviction shall be confined at hard labour in the penitentiary
for not less than four nor longer than six years, at the discretion
of the court."
"Sec. 12. And be it further enacted, that it shall not be lawful
for any person or body of persons, by arbitrary force, or under
colour of any pretended rules, ordinances, law or custom of said
nation, to take the life of any Indian residing as aforesaid, for
enlisting as an emigrant, attempting to emigrate, ceding, or
attempting to cede, as aforesaid, the whole or any part of the said
territory, or meeting or attempting to meet, in treaty or in
council, as aforesaid, any commissioner or commissioners aforesaid;
and any person or body of persons offending against the provisions
of this section shall be guilty of
Page 31 U. S. 528
murder, subject to indictment, and, on conviction, shall suffer
death by hanging."
"Sec. 13. And be it further enacted that, should any of the
foregoing offences be committed under colour of any pretended
rules, ordinances, custom or law of said nation, all persons acting
therein, either as individuals or as pretended executive,
ministerial or judicial officers, shall be deemed and considered as
principals, and subject to the pains and penalties hereinbefore
described."
"Sec. 14. And be it further enacted that for all demands which
may come within the jurisdiction of a magistrate's court, suit may
be brought for the same in the nearest district of the county to
which the territory is hereby annexed, and all officers serving any
legal process on any person living on any portion of the territory
herein named shall be entitled to recover the sum of five cents for
every mile he may ride to serve the same, after crossing the
present limits of the said counties, in addition to the fees
already allowed by law; and in case any of the said officers should
be resisted in the execution of any legal process issued by any
court or magistrate, justice of the inferior court, or judge of the
superior court of any of said counties, he is hereby authorised to
call out a sufficient number of the militia of said counties to aid
and protect him in the execution of this duty."
"Sec. 15. And be it further enacted that no Indian or descendant
of any Indian residing within the Creek or Cherokee Nations of
Indians shall be deemed a competent witness in any court of this
State to which a white person may be a party, except such white
person resides within the said nation."
In September 1831, the grand jurors for the county of Gwinnett
in the State of Georgia, presented to the superior court of the
county the following indictment:
"Georgia, Gwinnett county: The grand jurors, sworn, chosen and
selected for the county of Gwinnett, in the name and behalf of the
citizens of Georgia, charge and accuse Elizur Butler, Samuel A.
Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland,
and Edward D. Losure, white persons of said county, with the
offence of 'residing within the limits of the Cherokee Nation
without a license:' For that the said Elizur Butler, Samuel A.
Worcester,
Page 31 U. S. 529
James Trott, Samuel Mays, Surry Eaton, Austin Copeland and
Edward D. Losure, white persons, as aforesaid, on the 15th day of
July 1831, did reside in that part of the Cherokee Nation attached
by the laws of said State to the said county, and in the county
aforesaid, without a license or permit from his Excellency the
Governor of said State, or from any agent authorised by his
Excellency the Governor aforesaid to grant such permit or license,
and without having taken the oath to support and defend the
Constitution and laws of the State of Georgia, and uprightly to
demean themselves as citizens thereof, contrary to the laws of said
State, the good order, peace and dignity thereof."
To this indictment, the plaintiff in error pleaded specially, as
follows:
"And the said Samuel A. Worcester, in his own proper person,
comes and says that this Court ought not to take further cognizance
of the action and prosecution aforesaid, because, he says, that on
the 15th day of July in the year 1831, he was, and still is, a
resident in the Cherokee Nation, and that the said supposed crime,
or crimes, and each of them, were committed, if committee at all,
at the town of New Echota, in the said Cherokee Nation, out of the
jurisdiction of this Court, and not in the county Gwinnett, or
elsewhere within the jurisdiction of this Court. And this defendant
saith, that he is a citizen of the State of Vermont, one of the
United States of America, and that he entered the aforesaid
Cherokee Nation in the capacity of a duly authorised missionary of
the American Board of Commissioners for Foreign Missions, under the
authority of the President of the United States, and has not since
been required by him to leave it; that he was, at the time of his
arrest, engaged in preaching the gospel to the Cherokee Indians,
and in translating the sacred Scriptures into their language, with
the permission and approval of the said Cherokee Nation, and in
accordance with the humane policy of the Government of the United
States, for the civilization and improvement of the Indians, and
that his residence there, for this purpose, is the residence
charged in the aforesaid indictment, and this defendant further
saith that this prosecution the State of Georgia ought not to have
or maintain, because he saith that several treaties have, from time
to time, been entered
Page 31 U. S. 530
into between the United States and the Cherokee Nation of
Indians, to-wit, at Hopewell on the 28th day of November, 1785; at
Holston on the 2d day of July, 1791; at Philadelphia on the 26th
day of June, 1794; at Tellico on the 2d day of October, 1798; at
Tellico on the 24th day of October, 1804; at Tellico on the 25th
day of October, 1805; at Tellico on the 27th day of October, 1805;
at Washington City on the 7th day of January, 1805; at Washington
City on the 22d day of March, 1816; at the Chickasaw Council House
on the 14th day of September, 1816; at the Cherokee Agency on the
8th day of July, 1817, and at Washington City on the 27th day of
February, 1819, all which treaties have been duly ratified by the
Senate of the United States of America, and by which treaties the
United States of America acknowledge the said Cherokee Nation to be
a sovereign nation, authorised to govern themselves, and all
persons who have settled within their territory, free from any
right of legislative interference by the several states composing
the United States of America in reference to acts done within their
own territory, and by which treaties the whole of the territory now
occupied by the Cherokee Nation on the east of the Mississippi has
been solemnly guarantied to them, all of which treaties are
existing treaties at this day, and in full force. By these
treaties, and particularly by the treaties of Hopewell and Holston,
the aforesaid territory is acknowledged to lie without the
jurisdiction of the several states composing the Union of the
United States; and, it is thereby specially stipulated that the
citizens of the United States shall not enter the aforesaid
territory, even on a visit, without a passport from the Governor of
a State, or from some one duly authorised thereto by the President
of the United States, all of which will more fully and at large
appear by reference to the aforesaid treaties. And this defendant
saith that the several acts charged in the bill of indictment were
done or omitted to be done, if at all, within the said territory so
recognized as belonging to the said Nation, and so, as aforesaid,
held by them, under the guarantee of the United States; that for
those acts the defendant is not amenable to the laws of Georgia,
nor to the jurisdiction of the courts of the said State; and that
the laws of the State of Georgia, which profess to add the said
territory to the several adjacent counties of the said State, and
to extend the laws of Georgia over the said territory
Page 31 U. S. 531
and persons inhabiting the same, and, in particular, the act on
which this indictment against this defendant is grounded,
to-wit:"
"An act entitled an act to prevent the exercise of assumed and
arbitrary power by all persons, under pretext of authority from the
Cherokee Indians, and their laws, and to prevent white persons from
residing within that part of the chartered limits of Georgia
occupied by the Cherokee Indians, and to provide a guard for the
protection of the gold mines, and to enforce the laws of the State
within the aforesaid territory,"
"are repugnant to the aforesaid treaties, which, according to
the Constitution of the United States, compose a part of the
supreme law of the land, and that these laws of Georgia are
therefore unconstitutional, void, and of no effect; that the said
laws of Georgia are also unconstitutional and void because they
impair the obligation of the various contracts formed by and
between the aforesaid Cherokee Nation and the said United States of
America, as above recited; also that the said laws of Georgia are
unconstitutional and void because they interfere with, and attempt
to regulate and control, the intercourse with the said Cherokee
Nation, which, by the said Constitution, belongs exclusively to the
Congress of the United States; and because the said laws are
repugnant to the statute of the United States, passed on ___ day of
March 1802, entitled 'an act to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the frontiers;' and
that, therefore, this Court has no jurisdiction to cause this
defendant to make further or other answer to the said bill of
indictment, or further to try and punish this defendant for the
said supposed offence or offences alleged in the bill of
indictment, or any of them; and therefore this defendant prays
judgment whether he shall be held bound to answer further to said
indictment."
This plea was overruled by the court; and the jurisdiction of
the Superior Court of the County of Gwinnett was sustained by the
judgment of the court.
The defendant was then arraigned, and pleaded "not guilty," and
the case came on for trial on the 15th of September 1831, when the
jury found the defendants in the indictment guilty. On the same day
the court pronounced sentence on the parties so convicted, as
follows:
Page 31 U. S. 532
"
The State v. B. F. Thompson and others. Indictment for
residing in the Cherokee Nation without license. Verdict,
Guilty."
"
The State v. Elizur Butler, Samuel A. Worcester and
others. Indictment for residing in the Cherokee Nation without
license. Verdict, Guilty."
"The defendants in both of the above cases shall be kept in
close custody by the sheriff of this county until they can be
transported to the penitentiary of this State, and the keeper
thereof is hereby directed to receive them, and each of them, into
his custody, and keep them, and each of them, at hard labour in
said penitentiary, for and during the term of four years."
A writ of error was issued on the application of the plaintiff
in error, on the 27th of October 1831, which, with the following
proceedings thereon, was returned to this court.
"United States of America, ss. -- The President of the United
States to the honourable the judges of the Superior Court for the
County of Gwinnett, in the State of Georgia, greeting:"
"Because in the record and proceedings, as also in the rendition
of the judgment of a plea which is in the said superior court, for
the county of Gwinnett, before you, or some of you, between the
State of Georgia, plaintiff, and Samuel A. Worcester, defendant, on
an indictment, being the highest court of law in said State in
which a decision could be had in said suit, a manifest error hath
happened, to the great damage of the said Samuel A. Worcester, as
by his complaint appears. We being willing that error, if any hath
been, should be duly corrected, and full and speedy justice done to
the parties aforesaid in this behalf, do command you, if judgment
be therein given that then under your seal distinctly and openly,
you send the record and proceedings aforesaid, with all things
concerning the same, to the Supreme Court of the United States,
together with this writ, so that you have the same at Washington on
the second Monday of January next, in the said Supreme Court, to be
then and there held; that the record and proceedings aforesaid
being inspected, the said Supreme Court may cause further to be
done therein, to correct that error, what of right, and according
to the laws and custom of the United States, should be done. "
Page 31 U. S. 533
"Witness, the honourable John Marshall, chief justice of the
said Supreme Court, the first Monday of August in the year of our
Lord one thousand eight hundred and thirty-one."
"WM. THOS. CARROLL"
"
Clerk of the Supreme Court of the United States"
"Allowed by HENRY BALDWIN."
"United States of America to the State of Georgia,
greeting:"
"You are hereby cited and admonished to be, and appear at a
Supreme Court of the United States, to be holden at Washington, on
the second Monday of January next, pursuant to a writ of error
filed in the clerk's office of the superior court for the county of
Gwinnett, in the State of Georgia, wherein Samuel A. Worcester is
plaintiff in error, and the State of Georgia is defendant in error,
to show cause, if any there be, why judgment rendered against the
said Samuel A. Worcester, as in the said writ of error mentioned,
should not be corrected, and why speedy justice should not be done
to the parties in that behalf."
"Witness, the honourable Henry Baldwin, one of the Justices of
the Supreme Court of the United States, this 27th day of October,
in the year of our Lord one thousand eight hundred and
thirty-one."
"HENRY BALDWIN."
"State of Georgia, county of Gwinnett, sct: -- On this 26th day
of November, in the year of our Lord eighteen hundred and
thirty-one, William Potter personally appeared before the
subscriber, John Mills, a justice of the peace in and for said
county, and being duly sworn on the holy evangelists of Almighty
God, deposeth and saith that, on the 24th day of November instant,
he delivered a true copy of the within citation to his excellency,
Wilson Lumpkin, Governor of the State of Georgia, and another true
copy thereof he delivered, on the 22d day of November, instant, to
Charles J. Jenkins, Esq. Attorney General of the State aforesaid,
showing to the said Governor and Attorney General, respectively, at
the times of delivery herein stated, the within citation. WM.
POTTER."
"Sworn to and subscribed before me the day and year above
written. JOHN MILLS, J.P."
This writ of error was returned to the Supreme Court with
Page 31 U. S. 534
copies of all the proceedings in the Supreme Court of the County
of Gwinnett, as stated, and accompanied with certificates of the
clerk of that court in the following terms:
"Georgia, Gwinnett county. I, John G. Park, clerk of the
Superior Court of the County of Gwinnett and State aforesaid, do
certify that the annexed and foregoing is a full and complete
exemplification of the proceedings and judgments had in said court
against Samuel A. Worcester, one of the defendants in the case
therein mentioned as they remain of record in the said Superior
Court."
"Given under my hand, and seal of the court, this 28th day of
November, 1831."
"JOHN G. PARK,
Clerk"
"I also certify that the original bond, of which a copy of
annexed (the bond was in the usual form), and also a copy of the
annexed writ of error, were duly deposited and filed in the clerk's
office of said Court, on the 10th day of November in the year of
our Lord eighteen hundred and thirty-one."
"Given under my hand and seal aforesaid, the day and date above
written."
"JOHN G. PARK,
Clerk"
The case of
Elizur Butler, Plaintiff in Error v. The State
of Georgia, was brought before the Supreme Court in the same
manner.
Page 31 U. S. 536
Mr Chief Justice MARSHALL delivered the opinion of the
Court.
This cause, in every point of view in which it can be placed, is
of the deepest interest.
The defendant is a State, a member of the Union, which has
exercised the powers of government over a people who deny its
jurisdiction, and are under the protection of the United
States.
The plaintiff is a citizen of the State of Vermont, condemned to
hard labour for four years in the penitentiary of Georgia under
colour of an act which he alleges to be repugnant to the
Constitution, laws, and treaties of the United States.
The legislative power of a State, the controlling power of the
Constitution and laws of the United States, the rights, if they
have any, the political existence of a once numerous and powerful
people, the personal liberty of a citizen, are all involved in the
subject now to be considered.
It behooves this court, in every case, more especially in this,
to examine into its jurisdiction with scrutinizing eyes before it
proceeds to the exercise of a power which is controverted.
The first step in the performance of this duty is the inquiry
whether the record is properly before the Court.
It is certified by the clerk of the court which pronounced the
judgment of condemnation under which the plaintiff in error is
imprisoned, and is also authenticated by the seal of the court. It
is returned with, and annexed to, a writ of error issued in regular
form, the citation being signed by one of the Associate Justices of
the Supreme Court, and served on the Governor and Attorney General
of the State more than thirty days before the commencement of the
term to which the writ of error was returnable.
The Judicial Act (sec. 22, 25, 2 Laws U. S. 64, 65), so far as
it prescribes the mode of proceeding, appears to have been
literally pursued.
In February, 1797, a rule (6 Wheat.Rules) was made on this
subject in the following words:
"It is ordered by the Court that the clerk of the Court to which
any writ of error shall be directed may make return of the same by
transmitting a true
Page 31 U. S. 537
copy of the record, and of all proceedings in the same, under
his hand and the seal of the Court."
This has been done. But the signature of the judge has not been
added to that of the clerk. The law does not require it. The rule
does not require it.
In the case of
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 361,
an exception was taken to the return of the refusal of the State
court to enter a prior judgment of reversal by this Court because
it was not made by the judge of the State court to which the writ
was directed, but the exception was overruled, and the return was
held sufficient. In
Buel v. Van
Ness, 8 Wheat. 312, also a writ of error to a State
court, the record was authenticated in the same manner. No
exception was taken to it. These were civil cases. But it has been
truly said at the bar that, in regard to this process, the law
makes no distinction between a criminal and civil case. The same
return is required in both. If the sanction of the Court could be
necessary for the establishment of this position, it has been
silently given.
M'Culloch v.
Maryland, 4 Wheat. 316, was a
qui tam
action brought to recover a penalty, and the record was
authenticated by the seal of the Court and the signature of the
clerk, without that of a judge.
Brown et al. v. The State of
Maryland was an indictment for a fine and forfeiture. The
record in this case, too, was authenticated by the seal of the
Court and the certificate of the clerk. The practice is both
ways.
The record, then, according to the Judiciary Act and the rule
and the practice of the Court, is regularly before us. The more
important inquiry is does it exhibit a case cognizable by this
tribunal?
The indictment charges the plaintiff in error and others, being
white persons, with the offence of "residing within the limits of
the Cherokee Nation without a license," and "without having taken
the oath to support and defend the Constitution and laws of the
State of Georgia."
The defendant in the State court appeared in proper person, and
filed the following plea:
"And the said Samuel A. Worcester, in his own proper person,
comes and says that this Court ought not to take
Page 31 U. S. 538
further cognizance of the action and prosecution aforesaid
because he says that, on the 15th day of July in the year 1831, he
was, and still is, a resident in the Cherokee Nation, and that the
said supposed crime or crimes, and each of them, were committed, if
committed at all, at the town of New Echota, in the said Cherokee
Nation, out of the jurisdiction of this Court, and not in the
County Gwinnett, or elsewhere, within the jurisdiction of this
Court, and this defendant saith that he is a citizen of the State
of Vermont, one of the United States of America, and that he
entered the aforesaid Cherokee Nation in the capacity of a duly
authorised missionary of the American Board of Commissioners for
Foreign Missions, under the authority of the President of the
United States, and has not since been required by him to leave it;
that he was, at the time of his arrest, engaged in preaching the
gospel to the Cherokee Indians, and in translating the sacred
scriptures into their language, with the permission and approval of
the said Cherokee Nation, and in accordance with the humane policy
of the Government of the United States for the civilization and
improvement of the Indians; and that his residence there for this
purpose is the residence charged in the aforesaid indictment; and
this defendant further saith that this prosecution the State of
Georgia ought not to have or maintain because he saith that several
treaties have, from time to time, been entered into between the
United States and the Cherokee Nation of Indians, to-wit, at
Hopewell on the 28th day of November, 1785; at Holston on the 2d
day of July, 1791; at Philadelphia on the 26th day of June. 1794;
at Tellico on the 2d day of October, 1798; at Tellico on the 24th
day of October, 1804; at Tellico on the 25th day of October, 1805;
at Tellico on the 27th day of October, 1805; at Washington City on
the 7th day of January, 1805; at Washington City on the 22d day of
March, 1816; at the Chickasaw Council House on the 14th day of
September, 1816; at the Cherokee Agency on the 8th day of July,
1817; and at Washington City on the 27th day of February, 1819: all
which treaties have been duly ratified by the Senate of the United
States of America, and by which treaties the United States of
America acknowledge the said Cherokee Nation to be a sovereign
nation, authorised to govern themselves and all persons who have
settled within their territory free from any right of legislative
interference by the several states composing
Page 31 U. S. 539
the United States of America, in reference to acts done within
their own territory, and by which treaties the whole of the
territory now occupied by the Cherokee Nation on the east of the
Mississippi has been solemnly guarantied to them, all of which
treaties are existing treaties at this day, and in full force. By
these treaties, and particularly by the Treaties of Hopewell and
Holston, the aforesaid territory is acknowledged to lie without the
jurisdiction of the several states composing the Union of the
United States, and it is thereby specially stipulated that the
citizens of the United States shall not enter the aforesaid
territory, even on a visit, without a passport from the Governor of
a State, or from someone duly authorised thereto by the President
of the United States, all of which will more fully and at large
appear by reference to the aforesaid treaties. And this defendant
saith that the several acts charged in the bill of indictment were
done or omitted to be done, if at all, within the said territory so
recognized as belonging to the said nation and so, as aforesaid,
held by them under the guarantee of the United States; that, for
those acts, the defendant is not amenable to the laws of Georgia,
nor to the jurisdiction of the Courts of the said state, and that
the laws of the State of Georgia, which profess to add the said
territory to the several adjacent counties of the said State and to
extend the laws of Georgia over the said territory and persons
inhabiting the same, and, in particular, the act on which this
indictment against this defendant is grounded, to-wit,"
"An act entitled an act to prevent the exercise of assumed and
arbitrary power by all persons under pretext of authority from the
Cherokee Indians, and their laws, and to prevent white persons from
residing within that part of the chartered limits of Georgia
occupied by the Cherokee Indians, and to provide a guard for the
protection of the gold mines, and to enforce the laws of the State
within the aforesaid territory,"
"are repugnant to the aforesaid treaties, which, according to
the Constitution of the United States, compose a part of the
supreme law of the land; and that these laws of Georgia are,
therefore, unconstitutional, void, and of no effect; that the said
laws of Georgia are also unconstitutional and void because they
impair the obligation of the various contracts formed by and
between the aforesaid Cherokee Nation and the said United States of
America,
Page 31 U. S. 540
as above recited; also that the said laws of Georgia are
unconstitutional and void because they interfere with, and attempt
to regulate and control the intercourse with the said Cherokee
Nation, which, by the said Constitution, belongs exclusively to the
Congress of the United States; and because the said laws are
repugnant to the statute of the United States, passed on the ___
day of March 1802, entitled 'An act to regulate trade and
intercourse with the Indian tribes, and to preserve peace on the
frontiers;' and that, therefore, this Court has no jurisdiction to
cause this defendant to make further or other answer to the said
bill of indictment, or further to try and punish this defendant for
the said supposed offence or offences alleged in the bill of
indictment, or any of them; and therefore this defendant prays
judgment whether he shall be held bound to answer further to said
indictment."
This plea was overruled by the Court. And the prisoner, being
arraigned, plead not guilty. The jury found a verdict against him,
and the Court sentenced him to hard labour in the penitentiary for
the term of four years.
By overruling this plea, the Court decided that the matter it
contained was not a bar to the action. The plea, therefore, must be
examined for the purpose of determining whether it makes a case
which brings the party within the provisions of the twenty-fifth
section of the "Act to establish the judicial Courts of the United
States."
The plea avers that the residence, charged in the indictment,
was under the authority of the President of the United States, and
with the permission and approval of the Cherokee Nation. That the
treaties, subsisting between the United States, and the Cherokees,
acknowledge their right as a sovereign nation to govern themselves
and all persons who have settled within their territory, free from
any right of legislative interference by the several states
composing the United States of America. That the act under which
the prosecution was instituted is repugnant to the said treaties,
and is, therefore, unconstitutional and void. That the said act is
also unconstitutional because it interferes with and attempts to
regulate and control the intercourse with the Cherokee Nation,
which belongs exclusively to Congress, and because also it is
repugnant to the statute of the United States, entitled "An act
to
Page 31 U. S. 541
regulate trade and intercourse with the Indian tribes and to
preserve peace on the frontiers."
Let the averments of this plea be compared with the twenty-fifth
section of the Judicial Act.
That section enumerates the cases in which the final judgment or
decree of a State court may be revised in the Supreme Court of the
United States. These are
"where is drawn in question the validity of a treaty, or statute
of, or an authority exercised under, the United States, and the
decision is against their validity; or where is drawn in question
the validity of a statute of, or an authority exercised under any
State, on the ground of their being repugnant to the Constitution,
treaties or laws of the United States, and the decision is in
favour of such their validity; or where is drawn in question the
construction of any clause of the Constitution, or of a treaty, or
statute of, or commission held under the United States, and the
decision is against the title, right, privilege or exemption,
specially set up or claimed by either party under such clause of
the said Constitution, treaty, statute or commission."
The indictment and plea in this case draw in question, we think,
the validity of the treaties made by the United States with the
Cherokee Indians; if not so, their construction is certainly drawn
in question; and the decision has been, if not against their
validity, "against the right, privilege or exemption, specially set
up and claimed under them." They also draw into question the
validity of a statute of the State of Georgia, "on the ground of
its being repugnant to the Constitution, treaties and laws of the
United States, and the decision is in favour of its validity."
It is, then, we think, too clear for controversy that the act of
Congress by which this Court is constituted has given it the power,
and of course imposed on it the duty, of exercising jurisdiction in
this case. This duty, however unpleasant, cannot be avoided. Those
who fill the judicial department have no discretion in selecting
the subjects to be brought before them. We must examine the defence
set up in this plea. We must inquire and decide whether the act of
the Legislature of Georgia under which the plaintiff in error has
been prosecuted and condemned be consistent with, or repugnant to,
the Constitution, laws and treaties of the United States.
Page 31 U. S. 542
It has been said at the bar that the acts of the Legislature of
Georgia seize on the whole Cherokee country, parcel it out among
the neighbouring counties of the State, extend her code over the
whole country, abolish its institutions and its laws, and
annihilate its political existence.
If this be the general effect of the system, let us inquire into
the effect of the particular statute and section on which the
indictment is founded.
It enacts that
"all white persons, residing within the limits of the Cherokee
Nation on the 1st day of March next, or at any time thereafter,
without a license or permit from his Excellency the Governor, or
from such agent as his Excellency the Governor shall authorise to
grant such permit or license, and who shall not have taken the oath
hereinafter required, shall be guilty of a high misdemeanour, and,
upon conviction thereof, shall be punished by confinement to the
penitentiary, at hard labour, for a term not less than four
years."
The eleventh section authorises the Governor, should he deem it
necessary for the protection of the mines or the enforcement of the
laws in force within the Cherokee Nation, "to raise and organize a
guard," &c.
The thirteenth section enacts,
"that the said guard or any member of them, shall be, and they
are hereby, authorised and empowered to arrest any person legally
charged with or detected in a violation of the laws of this State,
and to convey, as soon as practicable, the person so arrested
before a justice of the peace, judge of the superior, or justice of
inferior Court of this State to be dealt with according to
law."
The extraterritorial power of every legislature being limited in
its action to its own citizens or subjects, the very passage of
this act is an assertion of jurisdiction over the Cherokee Nation,
and of the rights and powers consequent on jurisdiction.
The first step, then, in the inquiry which the Constitution and
laws impose on this Court is an examination of the rightfulness of
this claim.
America, separated from Europe by a wide ocean, was inhabited by
a distinct people, divided into separate nations, independent of
each other and of the rest of the world, having institutions of
their own, and governing themselves by their
Page 31 U. S. 543
own laws. It is difficult to comprehend the proposition that the
inhabitants of either quarter of the globe could have rightful
original claims of dominion over the inhabitants of the other, or
over the lands they occupied, or that the discovery of either by
the other should give the discoverer rights in the country
discovered which annulled the preexisting rights of its ancient
possessors.
After lying concealed for a series of ages, the enterprise of
Europe, guided by nautical science, conducted some of her
adventurous sons into this western world. They found it in
possession of a people who had made small progress in agriculture
or manufactures, and whose general employment was war, hunting, and
fishing.
Did these adventurers, by sailing along the coast, and
occasionally landing on it, acquire for the several governments to
whom they belonged, or by whom they were commissioned, a rightful
property in the soil, from the Atlantic to the Pacific, or rightful
dominion over the numerous people who occupied it? Or has nature,
or the great Creator of all things, conferred these rights over
hunters and fishermen, on agriculturists and manufacturers?
But power, war, conquest, give rights, which, after possession,
are conceded by the world, and which can never be controverted by
those on whom they descend. We proceed, then, to the actual state
of things, having glanced at their origin, because holding it in
our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited
different parts of this continent at nearly the same time. The
object was too immense for any one of them to grasp the whole, and
the claimants were too powerful to submit to the exclusive or
unreasonable pretensions of any single potentate. To avoid bloody
conflicts which might terminate disastrously to all, it was
necessary for the nations of Europe to establish some principle
which all would acknowledge, and which should decide their
respective rights as between themselves. This principle, suggested
by the actual state of things, was
"that discovery gave title to the government by whose subjects
or by whose authority it was made against all other European
Page 31 U. S. 544
governments, which title might be consummated by
possession."
8 Wheat.
21 U. S.
573.
This principle, acknowledged by all Europeans because it was the
interest of all to acknowledge it, gave to the nation making the
discovery, as its inevitable consequence, the sole right of
acquiring the soil and of making settlements on it. It was an
exclusive principle which shut out the right of competition among
those who had agreed to it, not one which could annul the previous
rights of those who had not agreed to it. It regulated the right
given by discovery among the European discoverers, but could not
affect the rights of those already in possession, either as
aboriginal occupants or as occupants by virtue of a discovery made
before the memory of man. It gave the exclusive right to purchase,
but did not found that right on a denial of the right of the
possessor to sell.
The relation between the Europeans and the natives was
determined in each case by the particular government which asserted
and could maintain this preemptive privilege in the particular
place. The United States succeeded to all the claims of Great
Britain, both territorial and political, but no attempt, so far as
is known, has been made to enlarge them. So far as they existed
merely in theory, or were in their nature only exclusive of the
claims of other European nations, they still retain their original
character, and remain dormant. So far as they have been practically
exerted, they exist in fact, are understood by both parties, are
asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting colonies in
America, the King granted charters to companies of his subjects who
associated for the purpose of carrying the views of the Crown into
effect, and of enriching themselves. The first of these charters
was made before possession was taken of any part of the country.
They purport, generally, to convey the soil from the Atlantic to
the South Sea. This soil was occupied by numerous and warlike
nations, equally willing and able to defend their possessions. The
extravagant and absurd idea that the feeble settlements made on the
sea coast, or the companies under whom they were made, acquired
legitimate power by them to govern the people, or occupy the lands
from
Page 31 U. S. 545
sea to sea did not enter the mind of any man. They were well
understood to convey the title which, according to the common law
of European sovereigns respecting America, they might rightfully
convey, and no more. This was the exclusive right of purchasing
such lands as the natives were willing to sell. The Crown could not
be understood to grant what the Crown did not affect to claim; nor
was it so understood.
The power of making war is conferred by these charters on the
colonies, but defensive war alone seems to have been contemplated.
In the first charter to the first and second colonies, they are
empowered, "for their several defences, to encounter, expulse,
repel, and resist, all persons who shall, without license," attempt
to inhabit
"within the said precincts and limits of the said several
colonies, or that shall enterprise or attempt at any time hereafter
the least detriment or annoyance of the said several colonies or
plantations."
The charter to Connecticut concludes a general power to make
defensive war with these terms: "and upon just causes to invade and
destroy the natives or other enemies of the said colony."
The same power, in the same words, is conferred on the
government of Rhode Island.
This power to repel invasion, and, upon just cause, to invade
and destroy the natives, authorizes offensive as well as defensive
war, but only "on just cause." The very terms imply the existence
of a country to be invaded, and of an enemy who has given just
cause of war.
The charter to William Penn contains the following recital:
"and because, in so remote a country, near so many barbarous
nations, the incursions as well of the savages themselves as of
other enemies, pirates, and robbers may probably be feared;
therefore we have given,"
&c. The instrument then confers the power of war.
These barbarous nations whose incursions were feared, and to
repel whose incursions the power to make war was given, were surely
not considered as the subjects of Penn, or occupying his lands
during his pleasure.
The same clause is introduced into the charter to Lord
Baltimore.
Page 31 U. S. 546
The charter to Georgia professes to be granted for the
charitable purpose of enabling poor subjects to gain a comfortable
subsistence by cultivating lands in the American provinces "at
present waste and desolate." It recites:
"and whereas our provinces in North America have been frequently
ravaged by Indian enemies, more especially that of South Carolina,
which, in the late war by the neighbouring savages, was laid waste
by fire and sword, and great numbers of the English inhabitants
miserably massacred, and our loving subjects, who now inhabit
there, by reason of the smallness of their numbers, will, in case
of any new war, be exposed to the like calamities, inasmuch as
their whole southern frontier continueth unsettled, and lieth open
to the said savages."
These motives for planting the new colony are incompatible with
the lofty ideas of granting the soil and all its inhabitants from
sea to sea. They demonstrate the truth that these grants asserted a
title against Europeans only, and were considered as blank paper so
far as the rights of the natives were concerned. The power of war
is given only for defence, not for conquest.
The charters contain passages showing one of their objects to be
the civilization of the Indians, and their conversion to
Christianity -- objects to be accomplished by conciliatory conduct
and good example, not by extermination.
The actual state of things and the practice of European nations
on so much of the American continent as lies between the
Mississippi and the Atlantic, explain their claims and the charters
they granted. Their pretensions unavoidably interfered with each
other; though the discovery of one was admitted by all to exclude
the claim of any other, the extent of that discovery was the
subject of unceasing contest. Bloody conflicts arose between them
which gave importance and security to the neighbouring nations.
Fierce and warlike in their character, they might be formidable
enemies or effective friends. Instead of rousing their resentments
by asserting claims to their lands or to dominion over their
persons, their alliance was sought by flattering professions, and
purchased by rich presents. The English, the French, and the
Spaniards were equally competitors for their friendship and their
aid. Not well acquainted with the exact meaning of
Page 31 U. S. 547
words, nor supposing it to be material whether they were called
the subjects or the children of their father in Europe; lavish in
professions of duty and affection, in return for the rich presents
they received; so long as their actual independence was untouched
and their right to self-government acknowledged, they were willing
to profess dependence on the power which furnished supplies of
which they were in absolute need, and restrained dangerous
intruders from entering their country. and this was probably the
sense in which the term was understood by them.
Certain it is that our history furnishes no example, from the
first settlement of our country, of any attempt on the part of the
Crown to interfere with the internal affairs of the Indians farther
than to keep out the agents of foreign powers, who, as traders or
otherwise, might seduce them into foreign alliances. The King
purchased their when they were willing to sell, at a price they
were willing to take, but never coerced a surrender of them. He
also purchased their alliance and dependence by subsidies, but
never intruded into the interior of their affairs or interfered
with their self-government so far as respected themselves only.
The general views of Great Britain with regard to the Indians
were detailed by Mr Stuart, Superintendent of Indian affairs, in a
speech delivered at Mobile, in presence of several persons of
distinction, soon after the peace of 1763. Towards the conclusion,
he says,
"Lastly, I inform you that it is the king's order to all his
Governors and subjects to treat Indians with justice and humanity,
and to forbear all encroachments on the territories allotted to
them; accordingly, all individuals are prohibited from purchasing
any of your lands; but, as you know that, as your white brethren
cannot feed you when you visit them unless you give them ground to
plant, it is expected that you will cede lands to the King for that
purpose. But, whenever you shall be pleased to surrender any of
your territories to his majesty, it must be done, for the future,
at a public meeting of your nation, when the governors of the
provinces or the superintendent shall be present, and obtain the
consent of all your people. The boundaries of your hunting grounds
will be accurately fixed, and no settlement permitted to be made
upon them. As you may be assured that all treaties
Page 31 U. S. 548
with your people will be faithfully kept, so it is expected that
you, also, will be careful strictly to observe them."
The proclamation issued by the King of Great Britain in 1763,
soon after the ratification of the articles of peace, forbids the
Governors of any of the colonies to grant warrants of survey, or
pass patents upon any lands whatever which, not having been ceded
to, or purchased by, us (the King), as aforesaid, are reserved to
the said Indians, or any of them.
The proclamation proceeds:
"And we do further declare it to be our royal will and pleasure,
for the present, as aforesaid, to reserve, under our sovereignty,
protection, and dominion, for the use of the said Indians, all the
lands and territories lying to the westward of the sources of the
rivers which fall into the sea, from the west and northwest as
aforesaid: and we do hereby strictly forbid, on pain of our
displeasure, all our loving subjects from making any purchases or
settlements whatever, or taking possession of any of the lands
above reserved, without our special leave and license for that
purpose first obtained."
"And we do further strictly enjoin and require all persons
whatever who have, either wilfully or inadvertently, seated
themselves upon any lands within the countries above described, or
upon any other lands which, not having been ceded to, or purchased
by us, are still reserved to the said Indians, as aforesaid,
forthwith to remove themselves from such settlements."
A proclamation, issued by Governor Gage in 1772 contains the
following passage:
"Whereas many persons, contrary to the positive orders of the
King upon this subject, have undertaken to make settlements beyond
the boundaries fixed by the treaties made with the Indian nations,
which boundaries ought to serve as a barrier between the whites and
the said nations, particularly on the Ouabache."
The proclamation orders such persons to quit those countries
without delay.
Such was the policy of Great Britain towards the Indian nations
inhabiting the territory from which she excluded all other
Europeans; such her claims, and such her practical exposition of
the charters she had granted. She considered them as nations
capable of maintaining the relations of peace and war; of governing
themselves, under her protection; and she
Page 31 U. S. 549
made treaties with them the obligation of which she
acknowledged.
This was the settled state of things when the war of our
revolution commenced. The influence of our enemy was established;
her resources enabled her to keep up that influence; and the
colonists had much cause for the apprehension that the Indian
nations would, as the allies of Great Britain, add their arms to
hers. This, as was to be expected, became an object of great
solicitude to Congress. Far from advancing a claim to their lands,
or asserting any right of dominion over them, Congress resolved
"that the securing and preserving the friendship of the Indian
nations appears to be a subject of the utmost moment to these
colonies."
The early journals of Congress exhibit the most anxious desire
to conciliate the Indian nations. Three Indian departments were
established; and commissioners appointed in each
"to treat with the Indians in their respective departments in
the name and on the behalf of the United Colonies in order to
preserve peace and friendship with the said Indians and to prevent
their taking any part in the present commotions."
The most strenuous exertions were made to procure those supplies
on which Indian friendships were supposed to depend, and every
thing which might excite hostility was avoided.
The first treaty was made with the Delawares, in September,
1778.
The language of equality in which it is drawn evinces the temper
with which the negotiation was undertaken and the opinion which
then prevailed in the United States.
"1. That all offences or acts of hostilities by one or either of
the contracting parties against the other be mutually forgiven, and
buried in the depth of oblivion, never more to be had in
remembrance."
"2. That a perpetual peace and friendship shall, from
henceforth, take place and subsist between the contracting parties
aforesaid, through all succeeding generations, and if either of the
parties are engaged in a just and necessary war with any other
nation or nations. that then each shall assist the other, in due
proportion to their abilities, till their enemies are brought to
reasonable terms of accommodation,"
&c.
3. The third article stipulates, among other things, a free
Page 31 U. S. 550
passage for the American troops through the Delaware nation, and
engages that they shall be furnished with provisions and other
necessaries at their value.
"4. For the better security of the peace and friendship now
entered into by the contracting parties against all infractions of
the same by the citizens of either party to the prejudice of the
other, neither party shall proceed to the infliction of punishments
on the citizens of the other otherwise than by securing the
offender or offenders, by imprisonment, or any other competent
means, till a fair and impartial trial can be had by judges or
juries of both parties, as near as can be to the laws, customs and
usages of the contracting parties, and natural justice,"
&c.
5. The fifth article regulates the trade between the contracting
parties in a manner entirely equal.
6. The sixth article is entitled to peculiar attention, as it
contains a disclaimer of designs which were, at that time, ascribed
to the United States by their enemies, and from the imputation of
which Congress was then peculiarly anxious to free the government.
It is in these words:
"Whereas the enemies of the United States have endeavoured by
every artifice in their power to possess the Indians in general
with an opinion that it is the design of the states aforesaid to
extirpate the Indians and take possession of their country, to
obviate such false suggestion, the United States do engage to
guaranty to the aforesaid Nation of Delawares, and their heirs, all
their territorial rights, in the fullest and most ample manner, as
it hath been bounded by former treaties, as long as the said
Delaware Nation shall abide by, and hold fast the chain of
friendship now entered into."
The parties further agree that other tribes, friendly to the
interest of the United States, may be invited to form a State,
whereof the Delaware nation shall be the heads, and have a
representation in Congress.
This treaty, in its language, and in its provisions, is formed,
as near as may be, on the model of treaties between the Crowned
heads of Europe.
The sixth article shows how Congress then treated the injurious
calumny of cherishing designs unfriendly to the political and civil
rights of the Indians.
Page 31 U. S. 551
During the War of the Revolution, the Cherokees took part with
the British. After its termination, the United States, though
desirous of peace, did not feel its necessity so strongly as while
the war continued. Their political situation being changed, they
might very well think it advisable to assume a higher tone, and to
impress on the Cherokees the same respect for Congress which was
before felt for the King of Great Britain. This may account for the
language of the treaty of Hopewell. There is the more reason for
supposing that the Cherokee chiefs were not very critical judges of
the language, from the fact that every one makes his mark; no chief
was capable of signing his name. It is probable the treaty was
interpreted to them.
The treaty is introduced with the declaration that
"The commissioners plenipotentiary of the United States give
peace to all the Cherokees, and receive them into the favour and
protection of the United States of America, on the following
conditions."
When the United States gave peace, did they not also receive it?
Were not both parties desirous of it? If we consult the history of
the day, does it not inform us that the United States were at least
as anxious to obtain it as the Cherokees? We may ask, further: did
the Cherokees come to the seat of the American government to
solicit peace, or did the American commissioners go to them to
obtain it? The treaty was made at Hopewell, not at New York. The
word "give," then, has no real importance attached to it.
The first and second articles stipulate for the mutual
restoration of prisoners, and are of course equal.
The third article acknowledges the Cherokees to be under the
protection of the United States of America, and of no other
power.
This stipulation is found in Indian treaties, generally. It was
introduced into their treaties with Great Britain, and may probably
be found in those with other European powers. Its origin may be
traced to the nature of their connexion with those powers, and its
true meaning is discerned in their relative situation.
The general law of European sovereigns respecting their claims
in America limited the intercourse of Indians, in a
Page 31 U. S. 552
great degree, to the particular potentate whose ultimate right
of domain was acknowledged by the others. This was the general
state of things in time of peace. It was sometimes changed in war.
The consequence was that their supplies were derived chiefly from
that nation, and their trade confined to it. Goods, indispensable
to their comfort, in the shape of presents were received from the
same hand. What was of still more importance, the strong hand of
government was interposed to restrain the disorderly and licentious
from intrusions into their country, from encroachments on their
lands, and from those acts of violence which were often attended by
reciprocal murder. The Indians perceived in this protection only
what was beneficial to themselves -- an engagement to punish
aggressions on them. It involved, practically, no claim to their
lands, no dominion over their persons. It merely bound the nation
to the British Crown as a dependent ally claiming the protection of
a powerful friend and neighbour and receiving the advantages of
that protection without involving a surrender of their national
character.
This is the true meaning of the stipulation, and is undoubtedly
the sense in which it was made. Neither the British government nor
the Cherokees ever understood it otherwise.
The same stipulation entered into with the United States is
undoubtedly to be construed in the same manner. They receive the
Cherokee Nation into their favor and protection. The Cherokees
acknowledge themselves to be under the protection of the United
States, and of no other power. Protection does not imply the
destruction of the protected. The manner in which this stipulation
was understood by the American government is explained by the
language and acts of our first President.
The fourth article draws the boundary between the Indians and
the citizens of the United States. But, in describing this
boundary, the term "allotted" and the term "hunting ground" are
used.
Is it reasonable to suppose that the Indians, who could not
write and most probably could not read, who certainly were not
critical judges of our language, should distinguish the word
"allotted" from the words "marked out." The actual subject of
contract was the dividing line between the two nations,
Page 31 U. S. 553
and their attention may very well be supposed to have been
confined to that subject. When, in fact, they were ceding lands to
the United States, and describing the extent of their cession, it
may very well be supposed that they might not understand the term
employed as indicating that, instead of granting, they were
receiving lands. If the term would admit of no other signification,
which is not conceded, its being misunderstood is so apparent,
results so necessarily from the whole transaction, that it must, we
think, be taken in the sense in which it was most obviously
used.
So with respect to the words "hunting grounds." Hunting was at
that time the principal occupation of the Indians, and their land
was more used for that purpose than for any other. It could not,
however, be supposed that any intention existed of restricting the
full use of the lands they reserved.
To the United States, it could be a matter of no concern whether
their whole territory was devoted to hunting grounds or whether an
occasional village and an occasional corn field, interrupted, and
gave some variety to the scene.
These terms had been used in their treaties with Great Britain,
and had never been misunderstood. They had never been supposed to
imply a right in the British government to take their lands or to
interfere with their internal government.
The fifth article withdraws the protection of the United States
from any citizen who has settled, or shall settle, on the lands
allotted to the Indians for their hunting grounds, and stipulates
that, if he shall not remove within six months, the Indians may
punish him.
The sixth and seventh articles stipulate for the punishment of
the citizens of either country who may commit offences on or
against the citizens of the other. The only inference to be drawn
from them is that the United States considered the Cherokees as a
nation.
The ninth article is in these words:
"For the benefit and comfort of the Indians, and for the
prevention of injuries or oppressions on the part of the citizens
or Indians, the United States, in Congress assembled, shall have
the sole and exclusive right of regulating the trade with the
Indians, and managing all their affairs, as they think proper."
To construe the expression "managing all their affairs"
Page 31 U. S. 554
into a surrender of self-government would be, we think, a
perversion of their necessary meaning, and a departure from the
construction which has been uniformly put on them. The great
subject of the article is the Indian trade. The influence it gave
made it desirable that Congress should possess it. The
commissioners brought forward the claim with the profession that
their motive was "the benefit and comfort of the Indians, and the
prevention of injuries or oppressions." This may be true as
respects the regulation of their trade and as respects the
regulation of all affairs connected with their trade, but cannot be
true as respects the management of all their affairs. The most
important of these are the cession of their lands and security
against intruders on them. Is it credible that they should have
considered themselves as surrendering to the United States the
right to dictate their future cessions and the terms on which they
should be made? or to compel their submission to the violence of
disorderly and licentious intruders? It is equally inconceivable
that they could have supposed themselves, by a phrase thus slipped
into an article on another and most interesting subject, to have
divested themselves of the right of self-government on subjects not
connected with trade. Such a measure could not be "for their
benefit and comfort," or for "the prevention of injuries and
oppression." Such a construction would be inconsistent with the
spirit of this and of all subsequent treaties, especially of those
articles which recognise the right of the Cherokees to declare
hostilities and to make war. It would convert a treaty of peace
covertly into an act, annihilating the political existence of one
of the parties. Had such a result been intended, it would have been
openly avowed.
This treaty contains a few terms capable of being used in a
sense which could not have been intended at the time, and which is
inconsistent with the practical construction which has always been
put on them; but its essential articles treat the Cherokees as a
nation capable of maintaining the relations of peace and war, and
ascertain the boundaries between them and the United States.
The treaty of Hopewell seems not to have established a solid
peace. To accommodate the differences still existing between the
State of Georgia and the Cherokee Nation, the Treaty of
Page 31 U. S. 555
Holston was negotiated in July, 1791. The existing Constitution
of the United States had been then adopted, and the Government,
having more intrinsic capacity to enforce its just claims, was
perhaps less mindful of high sounding expressions denoting
superiority. We hear no more of giving peace to the Cherokees. The
mutual desire of establishing permanent peace and friendship, and
of removing all causes of war is honestly avowed, and, in pursuance
of this desire, the first article declares that there shall be
perpetual peace and friendship between all the citizens of the
United States of America and all the individuals composing the
Cherokee Nation.
The second article repeats the important acknowledgement that
the Cherokee Nation is under the protection of the United States of
America, and of no other sovereign whosoever.
The meaning of this has been already explained. The Indian
nations were, from their situation, necessarily dependent on some
foreign potentate for the supply of their essential wants and for
their protection from lawless and injurious intrusions into their
country. That power was naturally termed their protector. They had
been arranged under the protection of Great Britain, but the
extinguishment of the British power in their neighbourhood, and the
establishment of that of the United States in its place, led
naturally to the declaration on the part of the Cherokees that they
were under the protection of the United States, and of no other
power. They assumed the relation with the United States which had
before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the
protection of one more powerful, not that of individuals abandoning
their national character and submitting as subjects to the laws of
a master.
The third article contains a perfectly equal stipulation for the
surrender of prisoners.
The fourth article declares that "the boundary between the
United States and the Cherokee Nation shall be as follows:
beginning," &c. We hear no more of "allotments" or of "hunting
grounds." A boundary is described, between nation and nation, by
mutual consent. The national character of each, the ability of each
to establish this boundary, is acknowledged by the other. To
preclude forever all disputes, it is agreed
Page 31 U. S. 556
that it shall be plainly marked by commissioners to be appointed
by each party; and, in order to extinguish forever all claim of the
Cherokees to the ceded lands, an additional consideration is to be
paid by the United States. For this additional consideration, the
Cherokees release all right to the ceded land forever.
By the fifth article, the Cherokees allow the United States a
road through their country, and the navigation of the Tennessee
river. The acceptance of these cessions is an acknowledgement of
the right of the Cherokees to make or withhold them.
By the sixth article, it is agreed on the part of the Cherokees
that the United States shall have the sole and exclusive right of
regulating their trade. No claim is made to the management of all
their affairs. This stipulation has already been explained. The
observation may be repeated that the stipulation is itself an
admission of their right to make or refuse it.
By the seventh article, the United States solemnly guaranty to
the Cherokee Nation all their lands not hereby ceded.
The eighth article relinquishes to the Cherokees any citizens of
the United States who may settle on their lands, and the ninth
forbids any citizen of the United States to hunt on their lands or
to enter their country without a passport.
The remaining articles are equal, and contain stipulations which
could be made only with a nation admitted to be capable of
governing itself.
This treaty, thus explicitly recognizing the national character
of the Cherokees and their right of self-government, thus
guarantying their lands, assuming the duty of protection, and of
course pledging the faith of the United States for that protection,
has been frequently renewed, and is now in full force.
To the general pledge of protection have been added several
specific pledges deemed valuable by the Indians. Some of these
restrain the citizens of the United States from encroachments on
the Cherokee country, and provide for the punishment of
intruders.
From the commencement of our government, Congress has passed
acts to regulate trade and intercourse with the Indians; which
treat them as nations, respect their rights, and manifest
Page 31 U. S. 557
a firm purpose to afford that protection which treaties
stipulate. All these acts, and especially that of 1802, which is
still in force, manifestly consider the several Indian nations as
distinct political communities, having territorial boundaries
within which their authority is exclusive and having a right to all
the lands within those boundaries which is not only acknowledged,
but guarantied, by the United States.
In 1819, Congress passed an act for promoting those humane
designs of civilizing the neighbouring Indians which had long been
cherished by the Executive. It enacts,
"that, for the purpose of providing against the further decline
and final extinction of the Indian tribes adjoining to the frontier
settlements of the United States, and for introducing among them
the habits and arts of civilization, the President of the United
States shall be, and he is hereby, authorized, in every case where
he shall judge improvement in the habits and condition of such
Indians practicable, and that the means of instruction can be
introduced with their own consent, to employ capable persons of
good moral character to instruct them in the mode of agriculture
suited to their situation, and for teaching their children in
reading, writing and arithmetic, and for performing such other
duties as may be enjoined, according to such instructions and rules
as the President may give and prescribe for the regulation of their
conduct in the discharge of their duties."
This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to
effect this object by civilizing and converting them from hunters
into agriculturists. Though the Cherokees had already made
considerable progress in this improvement, it cannot be doubted
that the general words of the act comprehend them. Their advance in
the "habits and arts of civilization," rather encouraged
perseverance in the laudable exertions still farther to meliorate
their condition. This act furnishes strong additional evidence of a
settled purpose to fix the Indians in their country by giving them
security at home.
The treaties and laws of the United States contemplate the
Indian territory as completely separated from that of the States,
and provide that all intercourse with them shall be carried on
exclusively by the government of the Union.
Page 31 U. S. 558
Is this the rightful exercise of power, or is it usurpation?
While these states were colonies, this power, in its utmost
extent, was admitted to reside in the Crown. When our revolutionary
struggle commenced, Congress was composed of an assemblage of
deputies acting under specific powers granted by the legislatures,
or conventions of the several colonies. It was a great popular
movement, not perfectly organized; nor were the respective powers
of those who were entrusted with the management of affairs
accurately defined. The necessities of our situation produced a
general conviction that those measures which concerned all must be
transacted by a body in which the representatives of all were
assembled, and which could command the confidence of all. Congress,
therefore, was considered as invested with all the powers of war
and peace, and Congress dissolved our connexion with the mother
country, and declared these United Colonies to be independent
states. Without any written definition of powers, they employed
diplomatic agents to represent the United States at the several
Courts of Europe; offered to negotiate treaties with them, and did
actually negotiate treaties with France. From the same necessity,
and on the same principles, Congress assumed the management of
Indian affairs, first in the name of these United Colonies and,
afterwards in the name of the United States. Early attempts were
made at negotiation, and to regulate trade with them. These not
proving successful, war was carried on under the direction and with
the forces of the United States, and the efforts to make peace, by
treaty, were earnest and incessant. The Confederation found
Congress in the exercise of the same powers of peace and war, in
our relations with Indian nations, as with those of Europe.
Such was the state of things when the Confederation was adopted.
That instrument surrendered the powers of peace and war to
Congress, and prohibited them to the States respectively, unless a
State be actually invaded
"or shall have received certain advice of a resolution being
formed by some nation of Indians to invade such State, and the
danger is so imminent as not to admit of delay till the United
States in Congress assembled can be consulted."
This instrument also gave the United States in Congress
assembled the sole and exclusive right of
"regulating the trade and managing all the affairs with the
Indians, not
Page 31 U. S. 559
members of any of the States, provided that the legislative
power of any State within its own limits be not infringed or
violated."
The ambiguous phrases which follow the grant of power to the
United States were so construed by the States of North Carolina and
Georgia as to annul the power itself. The discontents and confusion
resulting from these conflicting claims produced representations to
Congress, which were referred to a committee, who made their report
in 1787. The report does not assent to the construction of the two
States, but recommends an accommodation, by liberal cessions of
territory, or by an admission on their part of the powers claimed
by Congress. The correct exposition of this article is rendered
unnecessary by the adoption of our existing Constitution. That
instrument confers on Congress the powers of war and peace; of
making treaties, and of regulating commerce with foreign nations,
and among the several States and with the Indian tribes. These
powers comprehend all that is required for the regulation of our
intercourse with the Indians. They are not limited by any
restrictions on their free actions. The shackles imposed on this
power in the Confederation are discarded.
The Indian nations had always been considered as distinct,
independent political communities, retaining their original natural
rights as the undisputed possessors of the soil from time
immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with any
other European potentate than the first discoverer of the coast of
the particular region claimed, and this was a restriction which
those European potentates imposed on themselves, as well as on the
Indians. The very term "nation," so generally applied to them,
means "a people distinct from others." The Constitution, by
declaring treaties already made, as well as those to be made, to be
the supreme law of the land, has adopted and sanctioned the
previous treaties with the Indian nations, and consequently admits
their rank among those powers who are capable of making treaties.
The words "treaty" and "nation" are words of our own language,
selected in our diplomatic and legislative proceedings by
ourselves, having each a definite and well understood meaning.
We
Page 31 U. S. 560
have applied them to Indians, as we have applied them to the
other nations of the earth. They are applied to all in the same
sense.
Georgia, herself, has furnished conclusive evidence that her
former opinions on this subject concurred with those entertained by
her sister States, and by the Government of the United States.
Various acts of her legislature have been cited in the argument,
including the contract of cession made in the year 1802, all
tending to prove her acquiescence in the universal conviction that
the Indian nations possessed a full right to the lands they
occupied until that right should be extinguished by the United
States, with their consent; that their territory was separated from
that of any State within whose chartered limits they might reside
by a boundary line, established by treaties; that, within their
boundary, they possessed rights with which no State could
interfere; and that the whole power of regulating the intercourse
with them was vested in the United States. A review of these acts
on the part of Georgia would occupy too much time, and is the less
necessary because they have been accurately detailed in the
argument at the bar. Her new series of laws, manifesting her
abandonment of these opinions, appears to have commenced in
December, 1828.
In opposition to this original right, possessed by the
undisputed occupants of every country; to this recognition of that
right, which is evidenced by our history, in every change through
which we have passed; is placed the charters granted by the monarch
of a distant and distinct region, parceling out a territory in
possession of others whom he could not remove and did not attempt
to remove, and the cession made of his claims by the treaty of
peace.
The actual state of things at the time, and all history since,
explain these charters; and the King of Great Britain, at the
treaty of peace, could cede only what belonged to his Crown. These
newly asserted titles can derive no aid from the articles so often
repeated in Indian treaties, extending to them, first, the
protection of Great Britain, and afterwards that of the United
States. These articles are associated with others recognizing their
title to self-government. The very fact of repeated treaties with
them recognizes it, and the settled
Page 31 U. S. 561
doctrine of the law of nations is that a weaker power does not
surrender its independence -- its right to self-government -- by
associating with a stronger and taking its protection. A weak
State, in order to provide for its safety, may place itself under
the protection of one more powerful without stripping itself of the
right of government and ceasing to be a State. Examples of this
kind are not wanting in Europe. "Tributary and feudatory states,"
says Vattel,
"do not thereby cease to be sovereign and independent states, so
long as self-government and sovereign and independent authority are
left in the administration of the state."
At the present day, more than one state may be considered as
holding its right of self-government under the guarantee and
protection of one or more allies.
The Cherokee Nation, then, is a distinct community occupying its
own territory, with boundaries accurately described, in which the
laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter but with the assent of the Cherokees
themselves, or in conformity with treaties and with the acts of
Congress. The whole intercourse between the United States and this
Nation, is, by our Constitution and laws, vested in the Government
of the United States.
The act of the State of Georgia, under which the plaintiff in
error was prosecuted, is consequently void, and the judgment a
nullity. Can this Court revise, and reverse it?
If the objection to the system of legislation lately adopted by
the Legislature of Georgia in relation to the Cherokee Nation was
confined to its extraterritorial operation, the objection, though
complete so far as respected mere right, would give this Court no
power over the subject. But it goes much further. If the review
which has been taken be correct, and we think it is, the acts of
Georgia are repugnant to the Constitution, laws, and treaties of
the United States.
They interfere forcibly with the relations established between
the United States and the Cherokee Nation, the regulation of which,
according to the settled principles of our Constitution, are
committed exclusively to the government of the Union.
They are in direct hostility with treaties, repeated in a
succession of years, which mark out the boundary that separates
Page 31 U. S. 562
the Cherokee country from Georgia, guaranty to them all the land
within their boundary, solemnly pledge the faith of the United
States to restrain their citizens from trespassing on it, and
recognize the preexisting power of the nation to govern itself.
They are in equal hostility with the acts of Congress for
regulating this intercourse and giving effect to the treaties.
The forcible seizure and abduction of the plaintiff in error,
who was residing in the nation with its permission and by authority
of the President of the United States, is also a violation of the
acts which authorise the chief magistrate to exercise this
authority.
Will these powerful considerations avail the plaintiff in error?
We think they will. He was seized and forcibly carried away while
under guardianship of treaties guarantying the country in which he
resided and taking it under the protection of the United States. He
was seized while performing, under the sanction of the chief
magistrate of the Union, those duties which the humane policy
adopted by Congress had recommended. He was apprehended, tried, and
condemned under colour of a law which has been shown to the
repugnant to the Constitution, laws, and treaties of the United
States. Had a judgment, liable to the same objections, been
rendered for property, none would question the jurisdiction of this
Court. It cannot be less clear when the judgment affects personal
liberty, and inflicts disgraceful punishment, if punishment could
disgrace when inflicted on innocence. The plaintiff in error is not
less interested in the operation of this unconstitutional law than
if it affected his property. He is not less entitled to the
protection of the Constitution, laws, and treaties of his
country.
This point has been elaborately argued and, after deliberate
consideration, decided, in the case of
Cohens v.
The Commonwealth of Virginia, 6 Wheat. 264.
It is the opinion of this Court that the judgment of the
Superior Court for the County of Gwinnett, in the State of Georgia,
condemning Samuel A. Worcester to hard labour in the penitentiary
of the State of Georgia for four years was pronounced by that Court
under colour of a law which is void, as being repugnant to the
Constitution, treaties, and laws of the
Page 31 U. S. 563
United States, and ought, therefore, to be reversed and
annulled.
Mr. Justice M'LEAN.
As this case involves principles of the highest importance, and
may lead to consequences which shall have an enduring influence on
the institutions of this country, and as there are some points in
the case on which I wish to state distinctly my opinion, I embrace
the privilege of doing so.
With the decision, just given, I concur.
The plaintiff in error was indicted under a law of Georgia,
"for residing in that part of the Cherokee Nation attached, by
the laws of said State, to the County of Gwinnett without a license
or permit from his Excellency the Governor of the State, or from
any agent authorised by his Excellency the Governor to grant such
permit or license, and without having taken the oath to support and
defend the Constitution and laws of the State of Georgia, and
uprightly to demean himself as a citizen thereof."
On this indictment, the defendant was arrested, and, on being
arraigned before the Superior Court for Gwinnett County, he filed,
in substance, the following plea:
He admits that, on the 15th of July 1831, he was, and still
continued to be, a resident in the Cherokee Nation, and that the
crime, if any were committed, was committed at the town of New
Echota, in said nation, out of the jurisdiction of the Court. That
he is a citizen of Vermont, and that he entered the Indian country
in the capacity of a duly authorised missionary of the American
Board of Commissioners for Foreign Missions, under the authority of
the President of the United States, and has not since been required
by him to leave it. That he was, at the time of his arrest, engaged
in preaching the gospel to the Cherokee Indians, and in translating
the sacred Scriptures into their language, with the permission and
approval of the Cherokee Nation, and in accordance with the humane
policy of the Government of the United States, for the improvement
of the Indians.
He then States, as a bar to the prosecution, certain treaties
made between the United States and the Cherokee Indians, by
Page 31 U. S. 564
which the possession of the territory they now inhabit was
solemnly guarantied to them, and also a certain act of Congress,
passed in March, 1802, entitled "an act to regulate trade and
intercourse with the Indian tribes." He also alleges that this
subject, by the Constitution of the United States, is exclusively
vested in Congress, and that the law of Georgia, being repugnant to
the Constitution of the United States, to the treaties referred to,
and to the act of Congress specified, is void, and cannot be
enforced against him.
This plea was overruled by the court, and the defendant pleaded
not guilty.
The jury returned a verdict of guilty, and the defendant was
sentenced by the court to be kept in close custody by the sheriff
of the county until he could be transported to the penitentiary of
the State, and the keeper thereof was directed to receive him into
custody and keep him at hard labour in the penitentiary during the
term of four years.
Another individual was included in the same indictment, and
joined in the plea to the jurisdiction of the Court, and was also
included in the sentence, but his name is not adverted to, because
the principles of the case are fully presented in the above
statement.
To reverse this judgment, a writ of error was obtained which,
having been returned with the record of the proceedings, is now
before this Court.
The first question which it becomes necessary to examine is
whether the record has been duly certified, so as to bring the
proceedings regularly before this tribunal.
A writ of error was allowed in this case by one of the justices
of this Court, and the requisite security taken. A citation was
also issued, in the form prescribed, to the State of Georgia, a
true copy of which, as appears by the oath of William Patten, was
delivered to the Governor on the 24th day of November last, and
another true copy was delivered on the 22d day of the same month to
the Attorney General of the State.
The record was returned by the clerk, under the seal of the
Court, who certifies that it is a full and complete exemplification
of the proceedings and judgment had in the case, and he
Page 31 U. S. 565
further certifies that the original bond and a copy of the writ
of error were duly deposited and filed in the clerk's office of
said Court on the 10th day of November last.
Is it necessary, in such a case that the record should be
certified by the judge who held the Court?
In the case of
Martin v. Hunter's Lessee, which was a
writ of error to the Court of appeals of Virginia, it was objected
that the return to the writ of error was defective because the
record was not so certified, but the Court in that case said,
"the forms of process, and the modes of proceeding in the
exercise of jurisdiction are, with few exceptions, left by the
legislature to be regulated and changed as this Court may, in its
discretion, deem expedient."
By a rule of this Court,
"the return of a copy of a record of the proper Court, annexed
to the writ of error, is declared to be a sufficient compliance
with the mandate of the writ. The record, in this case, is duly
certified by the clerk of the Court of appeals, and annexed to the
writ of error. The objection, therefore, which has been urged to
the sufficiency of the return, cannot prevail."
1 Wheat.
14 U. S. 304.
In
22 U. S. 9 Wheat.
526, in the case of
Stewart v. Ingle and Others, which was
a writ of error to the Circuit Court for the District of Columbia,
a certiorari was issued upon a suggestion of diminution in the
record which was returned by the clerk with another record,
whereupon a motion was made for a new certiorari on the ground that
the return ought to have been made by the judge of the court below,
and not by the clerk. The writ of certiorari, it is known, like the
writ of error, is directed to the Court.
Mr Justice Washington, after consultation with the judges,
Stated that, according to the rules and practice of the Court, a
return made by the clerk was a sufficient return.
To ascertain what has been the general course of practice on
this subject, an examination has been made into the manner in which
records have been certified from State courts to this Court, and it
appears that, in the year 1817, six causes were certified, in
obedience to writs of error by the clerk under the seal of the
Court. In the year 1819, two were so certified, one of them being
the case of
M'Culloch v. The State of Maryland.
Page 31 U. S. 566
In the year 1821, three cases were so certified, and in the year
1823, there was one. In 1827, there were five, and in the ensuing
year, seven.
In the year 1830, there were eight causes so certified, in five
of which a State was a party on the record. There were three causes
thus certified in the year 1831, and five in the present year.
During the above periods, there were only fifteen causes from
State courts where the records were certified by the court or the
presiding judge, and one of these was the case of
Cohens v. The
State of Virginia.
This Court adopted the following rule on this subject in
1797:
"It is ordered by the Court that the clerk of the court to which
any writ of error shall be directed may make the return of the same
by transmitting a true copy of the record, and of all proceedings
in the cause, under his hand, and the seal of the Court."
The power of the Court to adopt this rule cannot be questioned,
and it seems to have regulated the practice ever since its
adoption. In some cases, the certificate of the court, or the
presiding judge, has been affixed to the record, but this Court has
decided, where the question has been raised, that such certificate
is unnecessary.
So far as the authentication of the record is concerned, it is
impossible to make a distinction between a civil and a criminal
case. What may be sufficient to authenticate the proceedings in a
civil case must be equally so in a criminal one. The verity of the
record is of as much importance in the one case as the other.
This is a question of practice, and it would seem that, if any
one point in the practice of this Court can be considered as
settled, this one must be so considered.
In the progress of the investigation, the next inquiry which
seems naturally to arise is whether this is a case in which a writ
of error may be issued.
By the twenty-fifth section of the Judiciary Act of 1789, it is
provided
"that a final judgment or decree in any suit in the highest
Court of law or equity of a State in which a decision in the suit
could be had, where is drawn in question the
Page 31 U. S. 567
validity of a treaty or statute of, or an authority exercised
under, the United States, and the decision is against their
validity; or where is drawn in question the validity of a statute
of, or an authority exercised under, any State, on the ground of
their being repugnant to the Constitution, treaties, or laws, of
the United States, and the decision is in favour of such their
validity; or where is drawn in question the construction of any
clause of the Constitution, or of a treaty or statute of, or
commission held under, the United States, and the decision is
against the title, right, privilege, or exemption, specially set up
or claimed by either party, under such clause of the said
Constitution, treaty, statute, or commission, may be reexamined,
and reversed or affirmed, in the Supreme Court of the United
States."
Doubts have been expressed whether a writ of error to a State
court is not limited to civil cases. These doubts could not have
arisen from reading the above section. Is not a criminal case as
much a suit as a civil case? What is a suit but a prosecution, and
can anyone suppose that it was the intention of Congress, in using
the word "suit," to make a distinction between a civil prosecution
and a criminal one?
It is more important that jurisdiction should be given to this
Court in criminal than in civil cases under the twenty-fifth
section of the Judiciary Act. Would it not be inconsistent, both
with the spirit and letter of this law, to revise the judgment of a
State court, in a matter of controversy respecting damages, where
the decision is against a right asserted under the Constitution or
a law of the United States, but to deny the jurisdiction in a case
where the property, the character, the liberty and life of a
citizen may be destroyed, though protected by the solemn guarantees
of the Constitution?
But this is not an open question; it has long since been settled
by the solemn adjudications of this Court. The above construction,
therefore, is sustained both on principle and authority. The
provisions of the section apply as well to criminal as to civil
cases, where the Constitution, treaties, or laws of the United
States come in conflict with the laws of a State; and the latter is
sustained by the decision of the Court.
It has been said this this Court can have no power to arrest
Page 31 U. S. 568
the proceedings of a State tribunal in the enforcement of the
criminal laws of the State. This is undoubtedly true so long as a
State court, in the execution of its penal laws, shall not infringe
upon the Constitution of the United States or some treaty or law of
the Union.
Suppose a State should make it penal for an officer of the
United States to discharge his duties within its jurisdiction, as,
for instance, a land officer, an officer of the customs, or a
postmaster, and punish the offender by confinement in the
penitentiary; could not the Supreme Court of the United States
interpose their power, and arrest or reverse the State proceedings?
Cases of this kind are so palpable that they need only to be stated
to gain the assent of every judicious mind. And would not this be
an interference with the administration of the criminal laws of a
State?
This Court have repeatedly decided that they have no appellate
jurisdiction in criminal cases from the Circuit Courts of the
United States; writs of error and appeals are given from those
Courts only in civil cases. But, even in those Courts, where the
judges are divided on any point in a criminal case, the point may
be brought before this Court under a general provision in cases of
division of opinion.
Jurisdiction is taken in the case under consideration
exclusively by the provisions of the twenty-fifth section of the
law which has been quoted. These provisions, as has been remarked,
apply, indiscriminately to criminal and civil cases wherever a
right is claimed under the Constitution, treaties, or laws of the
United States, and the decision by the State court is against such
right. In the present case, the decision was against the right
expressly set up by the defendant, and it was made by the highest
judicial tribunal of Georgia.
To give jurisdiction in such a case, this Court need look no
further than to ascertain whether the right, thus asserted, was
decided against by the State court. The case is clear of difficulty
on this point.
The name of the State of Georgia is used in this case because
such was the designation given to the cause in the State court. No
one ever supposed that the State, in its sovereign capacity in such
a case, is a party to the cause. The form of
Page 31 U. S. 569
the prosecution here must be the same as it was in the State
court; but so far as the name of the State is used, it is matter of
form. Under a rule of this Court, notice was given to the Governor
and Attorney General of the State because it is a part of their
duty to see that the laws of the State are executed.
In prosecutions for violations of the penal laws of the Union,
the name of the United States is used in the same manner. Whether
the prosecution be under a federal or State law, the defendant has
a right to question the constitutionality of the law.
Can any doubt exist as to the power of Congress to pass the law
under which jurisdiction is taken in this case? Since its passage
in 1789, it has been the law of the land, and has been sanctioned
by an uninterrupted course of decisions in this Court, and
acquiesced in by the State tribunals, with perhaps a solitary
exception, and whenever the attention of the national legislature
has been called to the subject, their sanction has been given to
the law by so large a majority as to approach almost to
unanimity.
Of the policy of this act there can be as little doubt as of the
right of Congress to pass it.
The Constitution of the United States was formed not, in my
opinion, as some have contended, by the people of the United
States, nor, as others, by the States, but by a combined power,
exercised by the people, through their delegates, limited in their
sanctions, to the respective States.
Had the Constitution emanated from the people, and the States
had been referred to merely as convenient districts by which the
public expression could be ascertained, the popular vote throughout
the Union would have been the only rule for the adoption of the
Constitution. This course was not pursued; and in this fact, it
clearly appears that our fundamental law was not formed exclusively
by the popular suffrage of the people.
The vote of the people was limited to the respective States in
which they resided. So that it appears there was an expression of
popular suffrage and State sanction, most happily united, in the
adoption of the Constitution of the Union.
Whatever differences of opinion may exist as to the means
Page 31 U. S. 570
by which the Constitution was adopted, there would seem to be no
ground for any difference as to certain powers conferred by it.
Three coordinate branches of the government were established;
the executive, legislative, and judicial. These branches are
essential to the existence of any free government, and that they
should possess powers, in their respective spheres, coextensive
with each other.
If the executive have not powers which will enable him to
execute the functions of his office, the system is essentially
defective, as those duties must, in such case, be discharged by one
of the other branches. This would destroy that balance which is
admitted to be essential to the existence of free government by the
wisest and most enlightened Statesmen of the present day.
It is not less important that the legislative power should be
exercised by the appropriate branch of the government than that the
executive duties should devolve upon the proper functionary. And if
the judicial power fall short of giving effect to the laws of the
Union, the existence of the Federal Government is at an end.
It is in vain, and worse than in vain, that the national
legislature enact laws, if those laws are to remain upon the
statute book as monuments of the imbecility of the national power.
It is in vain that the executive is called to superintend the
execution of the laws if he have no power to aid in their
enforcement.
Such weakness and folly are in no degree chargeable to the
distinguished men through whose instrumentality the Constitution
was formed. The powers given, it is true, are limited; and no
powers which are not expressly given can be exercised by the
Federal Government; but, where given, they are supreme. Within the
sphere allotted to them, the coordinate branches of the General
Government revolve unobstructed by any legitimate exercise of power
by the State governments. The powers exclusively given to the
Federal Government are limitations upon the State authorities. But,
with the exception of these limitations, the States are supreme,
and their sovereignty can be no more invaded by the action of the
General Government than the action of the State governments in
arrest or obstruct the course of the national power.
Page 31 U. S. 571
It has been asserted that the Federal Government is foreign to
the State governments, and that it must consequently be hostile to
them. Such an opinion could not have resulted from a thorough
investigation of the great principles which lie at the foundation
of our system. The Federal Government is neither foreign to the
State governments nor is it hostile to them. It proceeds from the
same people, and is as much under their control as the State
governments.
Where, by the Constitution, the power of legislation is
exclusively vested in Congress, they legislature for the people of
the Union, and their acts are as binding as are the constitutional
enactments of a State legislature on the people of the State. If
this were not so, the Federal Government would exist only in name.
Instead of being the proudest monument of human wisdom and
patriotism, it would be the frail memorial of the ignorance and
mental imbecility of its framers.
In the discharge of his constitutional duties, the Federal
Executive acts upon the people of the Union the same as a Governor
of a State, in the performance of his duties, acts upon the people
of the State. And the judicial power of the United States acts in
the same manner on the people. It rests upon the same basis as the
other departments of the Government. The powers of each are derived
from the same source, and are conferred by the same instrument.
They have the same limitations and extent.
The Supreme Court of a State, when required to give effect to a
statute of the State, will examine its Constitution, which they are
sworn to maintain, to see if the legislative act be repugnant to
it; and if a repugnancy exist, the statute must yield to the
paramount law.
The same principle governs the supreme tribunal of the Union. No
one can deny that the Constitution of the United States is the
supreme law of the land; and consequently, no act of any State
legislature, or of Congress, which is repugnant to it can be of any
validity.
Now if an act of a State legislature be repugnant to the
Constitution of the State, the State court will declare it void;
and if such act be repugnant to the Constitution of the Union, or a
law made under that Constitution, which is declared to be the
supreme law of the land, is it not equally void? And, under
Page 31 U. S. 572
such circumstances, if this Court should shrink from a discharge
of their duty in giving effect to the supreme law of the land,
would they not violate their oaths, prove traitors to the
Constitution, and forfeit all just claim to the public
confidence?
It is sometimes objected, if the federal judiciary may declare
an act of a State legislature void because it is repugnant to the
Constitution of the United States, it places the legislation of a
State within the power of this Court. And might not the same
argument be urged with equal force against the exercise of a
similar power by the Supreme Court of a State. Such an argument
must end in the destruction of all Constitutions, and the will of
the legislature, like the acts of the Parliament of Great Britain,
must be the supreme and only law of the land.
It is impossible to guard an investiture of power so that it may
not, in some form, be abused; an argument, therefore, against the
exercise of power because it is liable to abuse would go to the
destruction of all governments.
The powers of this Court are expressly, not constructively,
given by the Constitution, and, within this delegation of power,
this Court are the Supreme Court of the people of the United
States, and they are bound to discharge their duties under the same
responsibilities as the Supreme Court of a State, and are equally,
within their powers, the Supreme Court of the people of each
State.
When this Court are required to enforce the laws of any State,
they are governed by those laws. So closely do they adhere to this
rule that, during the present term, a judgment of a Circuit Court
of the United States, made in pursuance of decisions of this Court,
has been reversed and annulled because it did not conform to the
decisions of the State court in giving a construction to a local
law. But while this Court conforms its decisions to those of the
State courts on all questions arising under the statutes and
Constitutions of the respective States, they are bound to revise
and correct those decisions if they annul either the Constitution
of the United States or the laws made under it.
It appears, then, that on all questions arising under the laws
of a State, the decisions of the courts of such State form a rule
for the decisions of this Court, and that, on all questions arising
under the laws of the United States, the decisions of this
Court
Page 31 U. S. 573
form a rule for the decisions of the State courts. Is there
anything unreasonable in this? Have not the federal as well as the
State courts been constituted by the people? Why then should one
tribunal more than the other be deemed hostile to the interests of
the people?
In the second section of the third article of the Constitution,
it is declared that
"The judicial power shall extend to all cases, in law and
equity, arising under the Constitution, the laws of the United
States, and treaties made, or which shall be made, under their
authority."
Having shown that a writ of error will lie in this case, and
that the record has been duly certified, the next inquiry that
arises is what are the acts of the United States which relate to
the Cherokee Indians and the acts of Georgia, and were these acts
of the United States sanctioned by the federal Constitution?
Among the enumerated powers of Congress contained in the eighth
section of the first article of the Constitution, it is declared
"that Congress shall have power to regulate commerce with foreign
nations, and among the Indian tribes." By the Articles of
Confederation, which were adopted on the 9th day of July 1778, it
was provided
"That the United States, in Congress assembled, shall also have
the sole and exclusive right and power of regulating the alloy and
value of coin struck by their own authority or by that of the
respective States; fixing the standard of weight and measures
throughout the United States; regulating the trade and management
of all affairs with the Indians, not members of any of the States:
Provided that the legislative right of any State, within its own
limits, be not infringed or violated."
As early as June, 1775, and before the adoption of the Articles
of Confederation, Congress took into their consideration the
subject of Indian affairs. The Indian country was divided into
three departments, and the superintendence of each was committed to
commissioners, who were authorised to hold treaties with the
Indians, make disbursements of money for their use, and to
discharge various duties, designed to preserve peace and cultivate
a friendly feeling with them towards the colonies. No person was
permitted to trade with them
Page 31 U. S. 574
without a license from one or more of the commissioners of the
respective departments.
In April, 1776, it was
"Resolved that the commissioners of Indian affairs in the middle
department, or any one of them, be desired to employ, for
reasonable salaries, a minister of the gospel, to reside among the
Delaware Indians, and instruct them in the Christian religion; a
school master, to teach their youth reading, writing, and
arithmetic; also, a blacksmith, to do the work of the Indians."
The general intercourse with the Indians continued to be managed
under the superintendence of the Continental Congress.
On the 28th of November, 1785, the treaty of Hopewell was
formed, which was the first treaty made with the Cherokee Indians.
The commissioners of the United States were required to give notice
to the executives of Virginia, North Carolina, South Carolina, and
Georgia in order that each might appoint one or more persons to
attend the treaty, but they seem to have had no power to act on the
occasion.
In this treaty, it is stipulated that
"The commissioners plenipotentiary of the United States in
Congress assembled give peace to all the Cherokees, and receive
them into the favour and protection of the United States of
America, on the following conditions:"
"1. The Cherokees to restore all prisoners and property taken
during the war."
"2. The United States to restore to the Cherokees all
prisoners."
"3. The Cherokees acknowledge themselves to be under the
protection of the United States, and of no other sovereign
whatsoever."
"4. The boundary line between the Cherokees and the citizens of
the United States was agreed to as designated."
"5. If any person, not being an Indian, intrude upon the land
'allotted' to the Indians, or, being settled on it, shall refuse to
remove within six months after the ratification of the treaty, he
forfeits the protection of the United States, and the Indians were
at liberty to punish him as they might think proper."
"6. The Indians are bound to deliver up to the United States any
Indian who shall commit robbery, or other capital crime on a white
person living within their protection. "
Page 31 U. S. 575
"7. If the same offence be committed on an Indian by a citizen
of the United States, he is to be punished."
"8. It is understood that the punishment of the innocent, under
the idea of retaliation, is unjust, and shall not be practised on
either side, except where there is a manifest violation of this
treaty; and then it shall be preceded, first, by a demand of
justice; and, if refused, then by a declaration of
hostilities."
"That the Indians may have full confidence in the justice of the
United States respecting their interests; they shall have a right
to send a deputy of their choice, whenever they think fit, to
Congress."
The treaty of Holston was entered into with the same people on
the 2d day of July, 1791.
This was a treaty of peace in which the Cherokees again placed
themselves under the protection of the United States, and engaged
to hold no treaty with any foreign power, individual State, or with
individuals of any State. Prisoners were agreed to be delivered up
on both sides; a new Indian boundary was fixed; and a cession of
land made to the United States on the payment of a stipulated
consideration.
A free, unmolested road was agreed to be given through the
Indian lands, and the free navigation of the Tennessee river. It
was agreed that the United States should have the exclusive right
of regulating their trade, and a solemn guarantee of their land not
ceded was made. A similar provision was made, as to the punishment
of offenders, and as to all persons who might enter the Indian
territory, as was contained in the treaty of Hopewell. Also that
reprisal or retaliation shall not be committed until satisfaction
shall have been demanded of the aggressor.
On the 7th day of August, 1786, an ordinance for the regulation
of Indian affairs was adopted which repealed the former system.
In 1794, another treaty was made with the Cherokees, the object
of which was to carry into effect the treaty of Holston. And on the
plains of Tellico, on the 2d the October, 1798, the Cherokees, in
another treaty, agreed to give a right of way in a certain
direction over their lands. Other engagements were also entered
into which need not be referred to.
Various other treaties were made by the United States with
Page 31 U. S. 576
the Cherokee Indians by which, among other arrangements,
cessions of territory were procured, and boundaries agreed on.
In a treaty made in 1817, a distinct wish is expressed by the
Cherokees to assume a more regular form of government, in which
they are encouraged by the United States. By a treaty held at
Washington, on the 27th day of February, 1819, a reservation of
land is made by the Cherokees for a school fund, which was to be
surveyed and sold by the United States for that purpose. And it was
agreed that all white persons who had intruded on the Indian lands
should be removed.
To give effect to various treaties with this people, the power
of the executive has frequently been exercised; and at one time,
General Washington expressed a firm determination to resort to
military force to remove intruders from the Indian territories.
On the 30th of March, 1802, Congress passed an act to regulate
trade and intercourse with the Indian tribes and to preserve peace
on the frontiers.
In this act, it is provided that any citizen or resident in the
United States who shall enter into the Indian lands to hunt, or for
any other purpose, without a license shall be subject to a fine and
imprisonment. And if any person shall attempt to survey, or
actually survey, the Indian lands, he shall be liable to forfeit a
sum not exceeding one thousand dollars, and be imprisoned not
exceeding twelve months. No person is permitted to reside as a
trader within the Indian boundaries without a license or permit.
All persons are prohibited, under a heavy penalty, from purchasing
the Indian lands; and all such purchases are declared to be void.
And it is made lawful for the military force of the United States
to arrest offenders against the provisions of the act.
By the seventeenth section, it is provided that the act shall
not be so construed as to
"prevent any trade or intercourse with Indians living on lands
surrounded by settlements of the citizens of the United States, and
being within the ordinary jurisdiction of any of the individual
States; or the unmolested use of a road from Washington district to
Mero district, or to prevent the citizens of Tennessee from keeping
in repair said road."
Nor was the act to be so construed as to prevent persons from
travelling from Knoxville to Price's settlement,
Page 31 U. S. 577
provided they shall travel in the tract or path which is usually
traveled, and the Indians do not object; but if they object, then
all travel on this road to be prohibited, after proclamation by the
President, under the penalties provided in the act.
Several acts having the same object in view were passed prior to
this one, but, as they were repealed either before or by the Act of
1802, their provisions need not be specially noticed.
The acts of the State of Georgia which the plaintiff in error
complains of as being repugnant to the Constitution, treaties, and
laws of the United States are found in two statutes.
The first act was passed the 12th of December 1829, and is
entitled
"An act to add the territory lying within the chartered limits
of Georgia, and now in the occupancy of the Cherokee Indians, to
the counties of Carroll, De Kalb, Gwinnett and Habersham, and to
extend the laws of the State over the same, and to annul all laws
made by the Cherokee Nation of Indians, and to provide for the
compensation of officers serving legal process in said territory,
and to regulate the testimony of Indians, and to repeal the ninth
section of the act of 1828 on this subject."
This act annexes the territory of the Indians, within the limits
of Georgia, to the counties named in the title, and extends the
jurisdiction of the State over it. It annuls the laws, ordinances,
orders and regulations of any kind made by the Cherokees, either in
council or in any other way, and they are not permitted to be given
in evidence in the Courts of the State. By this law, no Indian or
the descendant of an Indian residing within the Creek or Cherokee
Nation of Indians shall be deemed a competent witness in any Court
of the State to which a white person may be a party, except such
white person reside within the Nation. Offences under the act are
to be punished by confinement in the penitentiary, in some cases
not less than four nor more than six years, and in others not
exceeding four years.
The second act was passed on the 22d day of December, 1830, and
is entitled
"An act to prevent the exercise of assumed and arbitrary power
by all persons on pretext of authority from the Cherokee Indians
and their laws, and to prevent white persons from residing within
that part of the
Page 31 U. S. 578
chartered limits of Georgia occupied by the Cherokee Indians,
and to provide a guard for the protection of the gold mines, and to
enforce the laws of the State within the aforesaid territory."
By the first section of this act, it is made a penitentiary
offence, after the 1st day of February 1831, for any person or
persons, under colour or pretence of authority from the said
Cherokee tribe, or as headmen, chiefs or warriors of said tribe, to
cause or procure by any means the assembling of any council or
other pretended legislative body of the said Indians for the
purpose of legislating, &c.
They are prohibited from making laws, holding courts of justice
or executing process. And all white persons, after the 1st of
March, 1831, who shall reside within the limits of the Cherokee
Nation without a license or permit from his Excellency the
Governor, or from such agent as his Excellency the Governor shall
authorize to grant such permit or license, or who shall not have
taken the oath hereinafter required, shall be guilty of a high
misdemeanour, and, upon conviction thereof, shall be punished by
confinement to the penitentiary at hard labour for a term not less
than four years. From this punishment, agents of the United States
are excepted, white females, and male children under twenty-one
years of age.
Persons who have obtained license are required to take the
following oath:
"I, A.B., do solemnly swear that I will support and defend the
Constitution and laws of the State of Georgia and uprightly demean
myself as a citizen thereof. So help me God."
The Governor is authorized to organize a guard, which shall not
consist of more than sixty persons, to protect the mines in the
Indian territory, and the guard is authorized to arrest all
offenders under the act.
It is apparent that these laws are repugnant to the treaties
with the Cherokee Indians which have been referred to, and to the
law of 1802. This repugnance is made so clear by an exhibition of
the respective acts that no force of demonstration can make it more
palpable.
By the treaties and laws of the United States, rights are
guarantied to the Cherokees, both as it respects their territory
and internal polity. By the laws of Georgia, these rights are
Page 31 U. S. 579
abolished, and not only abolished, but an ignominious punishment
is inflicted on the Indians and others for the exercise of them.
The important question then arises -- which shall stand, the laws
of the United States or the laws of Georgia? No rule of
construction or subtlety of argument can evade an answer to this
question. The response must be, so far as the punishment of the
plaintiff in error is concerned, in favour of the one or the
other.
Not to feel the full weight of this momentous subject would
evidence an ignorance of that high responsibility which is devolved
upon this tribunal, and upon its humblest member, in giving a
decision in this case.
Are the treaties and law which have been cited, in force?, and
what, if any, obligations, do they impose on the Federal Government
within the limits of Georgia?
A reference has been made to the policy of the United States on
the subject of Indian affairs before the adoption of the
Constitution with the view of ascertaining in what light the
Indians have been considered by the first official acts, in
relation to them, by the United States. For this object, it might
not be improper to notice how they were considered by the European
inhabitants who first formed settlements in this part of the
continent of America.
The abstract right of every section of the human race to a
reasonable portion of the soil, by which to acquire the means of
subsistence, cannot be controverted. And it is equally clear that
the range of nations or tribes who exist in the hunter state may be
restricted within reasonable limits. They shall not be permitted to
roam, in the pursuit of game, over an extensive and rich country
whilst, in other parts, human beings are crowded so closely
together as to render the means of subsistence precarious. The law
of nature, which is paramount to all other laws, gives the right to
every nation to the enjoyment of a reasonable extent of country, so
as to derive the means of subsistence from the soil.
In this view, perhaps, our ancestors, when they first migrated
to this country, might have taken possession of a limited extent of
the domain, had they been sufficiently powerful, without
negotiation or purchase from the native Indians. But this course is
believed to have been nowhere taken. A more
Page 31 U. S. 580
conciliatory mode was preferred, and one which was better
calculated to impress the Indians, who were then powerful, with a
sense of the justice of their white neighbours. The occupancy of
their lands was never assumed except upon the basis of contract and
on the payment of a valuable consideration.
This policy has obtained from the earliest white settlements in
this country down to the present time. Some cessions of territory
may have been made by the Indians in compliance with the terms on
which peace was offered by the whites, but the soil thus taken was
taken by the laws of conquest, and always as an indemnity for the
expenses of the war, commenced by the Indians.
At no time has the sovereignty of the country been recognized as
existing in the Indians, but they have been always admitted to
possess many of the attributes of sovereignty. All the rights which
belong to self-government have been recognized as vested in them.
Their right of occupancy has never been questioned, but the fee in
the soil has been considered in the Government. This may be called
the right to the ultimate domain, but the Indians have a present
right of possession.
In some of the old States, Massachusetts, Connecticut, Rhode
Island and others, where small remnants of tribes remain,
surrounded by white population, and who, by their reduced numbers,
had lost the power of self-government, the laws of the State have
been extended over them for the protection of their persons and
property.
Before the adoption of the Constitution, the mode of treating
with the Indians was various. After the formation of the
Confederacy, this subject was placed under the special
superintendence of the United Colonies, though, subsequent to that
time, treaties may have been occasionally entered into between a
State and the Indians in its neighbourhood. It is not considered to
be at all important to go into a minute inquiry on this
subject.
By the Constitution, the regulation of commerce among the Indian
tribes is given to Congress. This power must be considered as
exclusively vested in Congress, as the power to regulate commerce
with foreign nations, to coin money, to
Page 31 U. S. 581
establish post offices, and to declare war. It is enumerated in
the same section, and belongs to the same class of powers.
This investiture of power has been exercised in the regulation
of commerce with the Indians, sometimes by treaty and at other
times by enactments of Congress. In this respect, they have been
placed by the federal authority, with but few exceptions, on the
same footing as foreign nations.
It is said that these treaties are nothing more than compacts,
which cannot be considered as obligatory on the United States from
a want of power in the Indians to enter into them.
What is a treaty? The answer is it is a compact formed between
two nations or communities having the right of self-government.
Is it essential that each party shall possess the same
attributes of sovereignty, to give force to the treaty? This will
not be pretended, for, on this ground, very few valid treaties
could be formed. The only requisite is that each of the contracting
parties shall possess the right of self-government and the power to
perform the stipulations of the treaty.
Under the Constitution, no State can enter into any treaty; and
it is believed that, since its adoption, no State, under its own
authority, has held a treaty with the Indians.
It must be admitted that the Indians sustain a peculiar relation
to the United States. They do not constitute, as was decided at the
last term, a foreign State so as to claim the right to sue in the
Supreme Court of the United States; and yet, having the right of
self-government, they, in some sense, form a State. In the
management of their internal concerns, they are dependent on no
power. They punish offences under their own laws, and, in doing so,
they are responsible to no earthly tribunal. They make war and form
treaties of peace. The exercise of these and other powers gives to
them a distinct character as a people, and constitutes them, in
some respects, a state, although they may not be admitted to
possess the right of soil.
By various treaties, the Cherokees have placed themselves under
the protection of the United States; they have agreed to trade with
no other people, nor to invoke the protection of any other
sovereignty. But such engagements do not divest
Page 31 U. S. 582
them of the right of self-government, nor destroy their capacity
to enter into treaties or compacts.
Every State is more or less dependent on those which surround
it, but, unless this dependence shall extend so far as to merge the
political existence of the protected people into that of their
protectors, they may still constitute a State. They may exercise
the powers not relinquished, and bind themselves as a distinct and
separate community.
The language used in treaties with the Indians should never be
construed to their prejudice. If words be made use of which are
susceptible of a more extended meaning than their plain import, as
connected with the tenor of the treaty, they should be considered
as used only in the latter sense. To contend that the word
"allotted," in reference to the land guarantied to the Indians in
certain treaties, indicates a favour conferred, rather than a right
acknowledged, would, it would seem to me, do injustice to the
understanding of the parties. How the words of the treaty were
understood by this unlettered people, rather than their critical
meaning, should form the rule of construction.
The question may be asked, is no distinction to be made between
a civilized and savage people? Are our Indians to be placed upon a
footing with the nations of Europe, with whom we have made
treaties?
The inquiry is not what station shall now be given to the Indian
tribes in our country?, but what relation have they sustained to us
since the commencement of our government?
We have made treaties with them; and are those treaties to be
disregarded on our part because they were entered into with an
uncivilized people? Does this lessen the obligation of such
treaties? By entering into them, have we not admitted the power of
this people to bind themselves, and to impose obligations on
us?
The President and Senate, except under the treaty-making power,
cannot enter into compacts with the Indians or with foreign
nations. This power has been uniformly exercised in forming
treaties with the Indians.
Nations differ from each other in condition, and that of the
same nation may change by the revolutions of time, but the
Page 31 U. S. 583
principles of justice are the same. They rest upon a base which
will remain beyond the endurance of time.
After a lapse of more than forty years since treaties with the
Indians have been solemnly ratified by the General Government, it
is too late to deny their binding force. Have the numerous treaties
which have been formed with them, and the ratifications by the
President and Senate, been nothing more than an idle pageantry?
By numerous treaties with the Indian tribes, we have acquired
accessions of territory of incalculable value to the Union. Except
by compact, we have not even claimed a right of way through the
Indian lands. We have recognised in them the right to make war. No
one has ever supposed that the Indians could commit treason against
the United States. We have punished them for their violation of
treaties, but we have inflicted the punishment on them as a nation,
and not on individual offenders among them as traitors.
In the executive, legislative, and judicial branches of our
government, we have admitted, by the most solemn sanctions, the
existence of the Indians as a separate and distinct people, and as
being vested with rights which constitute them a State, or separate
community -- not a foreign, but a domestic community -- not as
belonging to the Confederacy, but as existing within it, and, of
necessity, bearing to it a peculiar relation.
But can the treaties which have been referred to, and the law of
1802, be considered in force within the limits of the State of
Georgia?
In the act of cession, made by Georgia to the United States, in
1802, of all lands claimed by her west of the line designated, one
of the conditions was
"that the United States should, at their own expense,
extinguish, for the use of Georgia, as early as the same can be
peaceably obtained, on reasonable terms, the Indian title to lands
within the State of Georgia."
One of the counsel, in the argument, endeavoured to show that no
part of the country now inhabited by the Cherokee Indians is within
what is called the chartered limits of Georgia.
It appears that the charter of Georgia was surrendered
Page 31 U. S. 584
by the trustees, and that, like the State of South Carolina, she
became a regal colony. The effect of this change was to authorise
the Crown to alter the boundaries in the exercise of its
discretion. Certain alterations, it seems, were subsequently made,
but I do not conceive it can be of any importance to enter into a
minute consideration of them. Under its charter, it may be observed
that Georgia derived a right to the soil, subject to the Indian
title, by occupancy. By the act of cession, Georgia designated a
certain line as the limit of that cession, and this line, unless
subsequently altered with the assent of the parties interested,
must be considered as the boundary of the State of Georgia. This
line, having been thus recognized, cannot be contested on any
question which may incidentally arise for judicial decision.
It is important, on this part of the case, to ascertain in what
light Georgia has considered the Indian title to lands, generally,
and particularly, within her own boundaries, and also as to the
right of the Indians to self-government.
In the first place, she was a party to all the treaties entered
into between the United States and the Indians since the adoption
of the Constitution. And prior to that period, she was represented
in making them, and was bound by their provisions, although it is
alleged that she remonstrated against the treaty of Hopewell. In
the passage of the intercourse law of 1802, as one of the
constituent parts of the Union, she was also a party.
The stipulation made in her act of cession that the United
States should extinguish the Indian title to lands within the State
was a distinct recognition of the right in the Federal Government
to make the extinguishment, and also that, until it should be made,
the right of occupancy would remain in the Indians.
In a law of the State of Georgia, "for opening the land office
and for other purposes," passed in 1783, it is declared that
surveys made on Indian lands were null and void; a fine was
inflicted on the person making the survey, which, if not paid by
the offender, he was punished by imprisonment. By a subsequent act,
a line was fixed for the Indians which was a boundary between them
and the whites. A similar provision is found in other laws of
Georgia, passed before the adoption
Page 31 U. S. 585
of the Constitution. By an act of 1787, severe corporeal
punishment was inflicted on those who made or attempted to make
surveys "beyond the temporary line designating the Indian hunting
ground."
On the 19th of November 1814, the following resolutions were
adopted by the Georgia Legislature:
"Whereas many of the citizens of this State, without regard to
existing treaties between the friendly Indians and the United
States, and contrary to the interest and good policy of this State,
have gone, and are frequently going over, and settling and
cultivating the lands allotted to the friendly Indians for their
hunting ground, by which means the State is not only deprived of
their services in the army, but considerable feuds are engendered
between us and our friendly neighbouring Indians:"
"Resolved, therefore, by the Senate and House of Representatives
of the State of Georgia in general assembly met, that His
Excellency, the Governor, be, and is hereby requested to take the
necessary means to have all intruders removed off the Indian lands,
and that proper steps be taken to prevent future aggressions."
In 1817, the Legislature refused to take any steps to dispose of
lands acquired by treaty with the Indians until the treaty had been
ratified by the Senate, and, by a resolution, the Governor was
directed to have the line run between the State of Georgia and the
Indians according to the late treaty. The same thing was again done
in the year 1819, under a recent treaty.
In a memorial to the President of the United States by the
Legislature of Georgia in 1819, they say,
"It has long been the desire of Georgia that her settlements
should be extended to her ultimate limits. . . . That the soil
within her boundaries should be subjected to her control, and that
her police organization and government should be fixed and
permanent. . . . That the State of Georgia claims a right to be
jurisdiction and soil of the territory within her limits. . . . She
admits, however that the right is inchoate -- remaining to be
perfected by the United States, in the extinction of the Indian
title, the United States
pro hac vice as their
agents."
The Indian title was also distinctly acknowledged by the Act
Page 31 U. S. 586
of 1796, repealing the Yazoo act. It is there declared, in
reference to certain lands that
"they are the sole property of the State, subject only to the
right of the treaty of the United States, to enable the State to
purchase, under its preemption right, the Indian title to the
same;"
and also that the land is vested in the
"State, to whom the right of preemption to the same belongs,
subject only to the controlling power of the United State to
authorise any treaties for, and to superintend the same."
This language, it will be observed, was used long before the act
of cession.
On the 25th of March, 1825, the Governor of Georgia issued the
following proclamation:
"Whereas it is provided in said treaty that the United States
shall protect the Indians against the encroachments, hostilities,
and impositions of the whites, so that they suffer no imposition,
molestation, or injury in their persons, goods, effects, their
dwellings, or the lands they occupy, until their removal shall have
been accomplished, according to the terms of the treaty,"
which had been recently made with the Indians.
"I have therefore thought proper to issue this my proclamation
warning all persons, citizens of Georgia or others, against
trespassing or intruding upon lands occupied by the Indians within
the limits of Georgia, either for the purpose of settlement or
otherwise, as every such act will be in direct violation of the
provisions of the treaty aforesaid, and will expose the aggressors
to the most certain and summary punishment by the authorities of
the State and the United States. . . . All good citizens,
therefore, pursuing the dictates of good faith will unite in
enforcing the obligations of the treaty, as the supreme law,"
&c.
Many other references might be made to the public acts of the
State of Georgia to show that she admitted the obligation of Indian
treaties, but the above are believed to be sufficient. These acts
do honour to the character of that highly respectable State.
Under the act of cession, the United States were bound, in good
faith, to extinguish the Indian title to lands within the limits of
Georgia so soon as it could be done peaceably and on reasonable
terms.
Page 31 U. S. 587
The State of Georgia has repeatedly remonstrated to the
President on this subject, and called upon the government to take
the necessary steps to fulfil its engagement. She complained that,
whilst the Indian title to immense tracts of country had been
extinguished elsewhere, within the limits of Georgia, but little
progress had been made; and this was attributed, either to a want
of effort on the part of the Federal Government or to the effect of
its policy towards the Indians. In one or more of the treaties,
titles in fee simple were given to the Indians to certain
reservations of land, and this was complained of by Georgia as a
direct infraction of the condition of the cession. It has also been
asserted that the policy of the government in advancing the cause
of civilization among the Cherokees and inducing them to assume the
forms of a regular government and of civilized life was calculated
to increase their attachment to the soil they inhabit, and to
render the purchase of their title more difficult, if not
impracticable.
A full investigation of this subject may not be considered as
strictly within the scope of the judicial inquiry which belongs to
the present case. But, to some extent, it has a direct bearing on
the question before the Court, as it tends to show how the rights
and powers of Georgia were construed by her public
functionaries.
By the first President of the United States, and by every
succeeding one, a strong solicitude has been expressed for the
civilization of the Indians. Through the agency of the government,
they have been partially induced, in some parts of the Union, to
change the hunter state for that of the agriculturist and
herdsman.
In a letter addressed by Mr. Jefferson to the Cherokees, dated
the 9th of January 1809, he recommends them to adopt a regular
government, that crimes might be punished and property protected.
He points out the mode by which a council should be chosen, who
should have power to enact laws; and he also recommended the
appointment of judicial and executive agents through whom the law
might be enforced. The agent of the government, who resided among
them, was recommended to be associated with their council that he
might give the necessary advice on all subjects relating to their
government.
Page 31 U. S. 588
In the treaty of 1817, the Cherokees are encouraged to adopt a
regular form of government.
Since that time, a law has been passed making an annual
appropriation of the sum of ten thousand dollars, as a school fund
for the education of Indian youths, which has been distributed
among the different tribes where schools had been established.
Missionary labours among the Indians have also been sanctioned by
the government by granting permits, to those who were disposed to
engage in such a work, to reside in the Indian country.
That the means adopted by the General Government to reclaim the
savage from his erratic life and induce him to assume the forms of
civilization have had a tendency to increase the attachment of the
Cherokees to the country they now inhabit is extremely probable,
and that it increased the difficulty of purchasing their lands, as
by act of cession the General Government agreed to do, is equally
probable.
Neither Georgia nor the United States, when the cession was
made, contemplated that force should be used in the extinguishment
of the Indian title; nor that it should be procured on terms that
are not reasonable. But may it not be said with equal truth that it
was not contemplated by either party that any obstructions to the
fulfillment of the compact should be allowed, much less sanctioned,
by the United States?
The humane policy of the government towards these children of
the wilderness must afford pleasure to every benevolent feeling,
and if the efforts made have not proved as successful as was
anticipated, still much has been done. Whether the advantages of
this policy should not have been held out by the government to the
Cherokees within the limits of Georgia as an inducement for them to
change their residence and fix it elsewhere, rather than by such
means to increase their attachment to their present home, as has
been insisted on, is a question which may be considered by another
branch of the government. Such a course might, perhaps, have
secured to the Cherokee Indians all the advantages they have
realized from the paternal superintendence of the government, and
have enabled it, on peaceable and reasonable terms, to comply with
the act of cession.
Does the intercourse law of 1802 apply to the Indians who
Page 31 U. S. 589
live within the limits of Georgia? The nineteenth section of
that act provides
"that it shall not be construed to prevent any trade or
intercourse with Indians living on lands surrounded by settlements
of the citizens of the United States, and being within the ordinary
jurisdiction of any of the individual States."
This provision, it has been supposed, excepts from the operation
of the law the Indian lands which lie within any State. A moment's
reflection will show that this construction is most clearly
erroneous.
To constitute an exception to the provisions of this act, the
Indian settlement, at the time of its passage, must have been
surrounded by settlements of the citizens of the United States, and
within the ordinary jurisdiction of a State; not only within the
limits of a State, but within the common exercise of its
jurisdiction.
No one will pretend that this was the situation of the Cherokees
who lived within the State of Georgia in 1802, or, indeed that such
is their present situation. If, then, they are not embraced by the
exception, all the provisions of the act of 1802 apply to them.
In the very section which contains the exception, it is provided
that the use of the road from Washington district to Mero district
should be enjoyed, and that the citizens of Tennessee, under the
orders of the Governor, might keep the road in repair. And in the
same section, the navigation of the Tennessee river is reserved,
and a right to travel from Knoxville to Price's settlement,
provided the Indians should not object.
Now all these provisions relate to the Cherokee country, and can
it be supposed by anyone that such provisions would have been made
in the act if Congress had not considered it as applying to the
Cherokee country, whether in the State of Georgia or in the State
of Tennessee?
The exception applied exclusively to those fragments of tribes
which are found in several of the States, and which came literally
within the description used.
Much has been said against the existence of an independent power
within a sovereign State, and the conclusion has been drawn that
the Indians, as a matter of right, cannot enforce their own laws
within the territorial limits of a State. The refutation of this
argument is found in our past history.
Page 31 U. S. 590
That fragments of tribes, having lost the power of
self-government, and who lived within the ordinary jurisdiction of
a State, have been taken under the protection of the laws, has
already been admitted. But there has been no instance where the
State laws have been generally extended over a numerous tribe of
Indians, living within the State, and exercising the right of
self-government, until recently.
Has Georgia ever, before her late laws, attempted to regulate
the Indian communities within her limits? It is true, New York
extended her criminal laws over the remains of the tribes within
that State, more for their protection than for any other purpose.
These tribes were few in number, and were surrounded by a white
population. But even the State of New York has never asserted the
power, it is believed, to regulate their concerns beyond the
suppression of crime.
Might not the same objection to this interior independent power,
by Georgia, have been urged with as much force as at present ever
since the adoption of the Constitution? Her chartered limits, to
the extent claimed, embraced a great number of different nations of
Indians, all of whom were governed by their own laws and were
amenable only to them. Has not this been the condition of the
Indians within Tennessee, Ohio, and other States?
The exercise of this independent power surely does not become
more objectionable as it assumes the basis of justice and the forms
of civilization. Would it not be a singular argument to admit that,
so long as the Indians govern by the rifle and the tomahawk, their
government may be tolerated, but that it must be suppressed so soon
as it shall be administered upon the enlightened principles of
reason and justice?
Are not those nations of Indians who have made some advances in
civilization better neighbours than those who are still in a savage
state? And is not the principle, as to their self-government,
within the jurisdiction of a State, the same?
When Georgia sanctioned the Constitution, and conferred on the
National Legislature the exclusive right to regulate commerce or
intercourse with the Indians, did she reserve the right to regulate
intercourse with the Indians within her limits? This will not be
pretended. If such had been the construction of her own powers,
would they not have been exercised?
Page 31 U. S. 591
Did her senators object to the numerous treaties which have been
formed with the different tribes, who lived within her acknowledged
boundaries? Why did she apply to the executive of the Union
repeatedly to have the Indian title extinguished, to establish a
line between the Indians and the State, and to procure a right of
way through the Indian lands?
The residence of Indians, governed by their own laws, within the
limits of a State has never been deemed incompatible with State
sovereignty, until recently. And yet, this has been the condition
of many distinct tribes of Indians since the foundation of the
Federal Government.
How is the question varied by the residence of the Indians in a
territory of the United States? Are not the United States sovereign
within their territories? And has it ever been conceived by anyone
that the Indian governments, which exist in the territories, are
incompatible with the sovereignty of the Union?
A State claims the right of sovereignty commensurate with her
territory, as the United States claim it, in their proper sphere,
to the extent of the federal limits. This right or power, in some
cases, may be exercised, but not in others. Should a hostile force
invade the country at its most remote boundary, it would become the
duty of the General Government to expel the invaders. But it would
violate the solemn compacts with the Indians without cause to
dispossess them of rights which they possess by nature, and have
been uniformly acknowledged by the Federal Government.
Is it incompatible with State sovereignty to grant exclusive
jurisdiction to the Federal Government over a number of acres of
land for military purposes? Our forts and arsenals, though situated
in the different States, are not within their jurisdiction.
Does not the Constitution give to the United States as exclusive
jurisdiction in regulating intercourse with the Indians as has been
given to them over any other subjects? Is there any doubt as to
this investiture of power? Has it not been exercised by the Federal
Government ever since its formation, not only without objection,
but under the express sanction of all the States?
The power to dispose of the public domain is an attribute
Page 31 U. S. 592
of sovereignty. Can the new States dispose of the lands within
their limits which are owned by the Federal Government? The power
to tax is also an attribute of sovereignty, but can the new States
tax the lands of the United States? Have they not bound themselves,
by compact, not to tax the public lands, nor until five years after
they shall have been sold? May they violate this compact, at
discretion?
Why may not these powers be exercised by the respective States?
The answer is because they have parted with them, expressly for the
general good. Why may not a State coin money, issue bills of
credit, enter into a treaty of alliance or confederation, or
regulate commerce with foreign nations? Because these powers have
been expressly and exclusively given to the Federal Government.
Has not the power been as expressly conferred on the Federal
Government to regulate intercourse with the Indians, and is it not
as exclusively given as any of the powers above enumerated? There
being no exception to the exercise of this power, it must operate
on all communities of Indians, exercising the right of
self-government, and consequently include those who reside within
the limits of a State, as well as others. Such has been the uniform
construction of this power by the Federal Government, and of every
State government, until the question was raised by the State of
Georgia.
Under this clause of the Constitution, no political jurisdiction
over the Indians has been claimed or exercised. The restrictions
imposed by the law of 1802 come strictly within the power to
regulate trade, not as an incident, but as a part of the principal
power. It is the same power, and is conferred in the same words,
that has often been exercised in regulating trade with foreign
countries. Embargoes have been imposed, laws of nonintercourse have
been passed, and numerous acts, restrictive of trade, under the
power to regulate commerce with foreign nations.
In the regulation of commerce with the Indians, Congress have
exercised a more limited power than has been exercised in reference
to foreign countries. The law acts upon our own citizens, and not
upon the Indians, the same as the laws referred to act upon our own
citizens in their foreign commercial intercourse.
Page 31 U. S. 593
It will scarcely be doubted by anyone that, so far as the
Indians, as distinct communities, have formed a connexion with the
Federal Government by treaties, that such connexion is political,
and is equally binding on both parties. This cannot be questioned
except upon the ground that, in making these treaties, the Federal
Government has transcended the treaty-making power. Such an
objection, it is true, has been stated, but it is one of modern
invention which arises out of local circumstances, and is not only
opposed to the uniform practice of the government, but also to the
letter and spirit of the Constitution.
But the inquiry may be made, is there no end to the exercise of
this power over Indians within the limits of a State by the General
Government? The answer is that, in its nature, it must be limited
by circumstances.
If a tribe of Indians shall become so degraded or reduced in
numbers as to lose the power of self-government, the protection of
the local law, of necessity, must be extended over them. The point
at which this exercise of power by a State would be proper need not
now be considered, if indeed it be a judicial question. Such a
question does not seem to arise in this case. So long as treaties
and laws remain in full force and apply to Indian nations
exercising the right of self-government within the limits of a
State, the judicial power can exercise no discretion in refusing to
give effect to those laws, when questions arise under them, unless
they shall be deemed unconstitutional.
The exercise of the power of self-government by the Indians,
within a State is undoubtedly contemplated to be temporary. This is
shown by the settled policy of the government, in the
extinguishment of their title, and especially by the compact with
the State of Georgia. It is a question not of abstract right, but
of public policy. I do not mean to say that the same moral rule
which should regulate the affairs of private life should not be
regarded by communities or nations. But a sound national policy
does require that the Indian tribes within our States should
exchange their territories, upon equitable principles, or
eventually consent to become amalgamated in our political
communities.
At best, they can enjoy a very limited independence within
Page 31 U. S. 594
the boundaries of a State, and such a residence must always
subject them to encroachments from the settlements around them, and
their existence within a State, as a separate and independent
community, may seriously embarrass or obstruct the operation of the
State laws. If, therefore, it would be inconsistent with the
political welfare of the States and the social advance of their
citizens that an independent and permanent power should exist
within their limits, this power must give way to the greater power
which surrounds it, or seek its exercise beyond the sphere of State
authority.
This state of things can only be produced by a cooperation of
the State and Federal Governments. The latter has the exclusive
regulation of intercourse with the Indians, and, so long as this
power shall be exercised, it cannot be obstructed by the State. It
is a power given by the Constitution and sanctioned by the most
solemn acts of both the Federal and State governments;
consequently, it cannot be abrogated at the will of a State. It is
one of the powers parted with by the States and vested in the
Federal Government. But if a contingency shall occur which shall
render the Indians who reside in a State incapable of
self-government, either by moral degradation or a reduction of
their numbers, it would undoubtedly be in the power of a State
government to extend to them the aegis of its laws. Under such
circumstances, the agency of the General Government, of necessity,
must cease.
But if it shall be the policy of the government to withdraw its
protection from the Indians who reside within the limits of the
respective States, and who not only claim the right of
self-government but have uniformly exercised it, the laws and
treaties which impose duties and obligations on the General
Government should be abrogated by the powers competent to do so. So
long as those laws and treaties exist, having been formed within
the sphere of the federal powers, they must be respected and
enforced by the appropriate organs of the Federal Government.
The plaintiff who prosecutes this writ of error entered the
Cherokee country, as it appears, with the express permission of the
President, and under the protection of the treaties of the United
States and the law of 1802. He entered not to corrupt the morals of
this people nor to profit by their substance, but to
Page 31 U. S. 595
teach them, by precept and example, the Christian religion. If
he be unworthy of this sacred office; if he had any other object
than the one professed; if he sought, by his influence to
counteract the humane policy of the Federal Government towards the
Indians, and to embarrass its efforts to comply with its solemn
engagement with Georgia; though his sufferings be illegal, he is
not a proper object of public sympathy.
It has been shown that the treaties and laws referred to come
within the due exercise of the constitutional powers of the Federal
Government; that they remain in full force, and consequently must
be considered as the supreme laws of the land. These laws throw a
shield over the Cherokee Indians. They guarantied to them their
rights of occupancy, of self-government, and the full enjoyment of
those blessings which might be attained in their humble condition.
But, by the enactments of the State of Georgia, this shield is
broken in pieces -- the infant institutions of the Cherokees are
abolished, and their laws annulled. Infamous punishment is
denounced against them for the exercise of those rights which have
been most solemnly guarantied to them by the national faith.
Of these enactments, however, the plaintiff in error has no
right to complain, nor can he question their validity, except
insofar as they affect his interests. In this view and in this view
only has it become necessary in the present case to consider the
repugnancy of the laws of Georgia to those of the Union.
Of the justice or policy of these laws it is not my province to
speak; such considerations belonging to the legislature by whom
they were passed. They have, no doubt, been enacted under a
conviction of right by a sovereign and independent State, and their
policy may have been recommended by a sense of wrong under the
compact. Thirty years have elapsed since the Federal Government
engaged to extinguish the Indian title within the limits of
Georgia. That she has strong ground of complaint arising from this
delay must be admitted; but such considerations are not involved in
the present case; they belong to another branch of the government.
We can look only to the law, which defines our power and marks out
the path of our duty.
Under the administration of the laws of Georgia, a citizen
of
Page 31 U. S. 596
the United States has been deprived of his liberty, and,
claiming protection under the treaties and laws of the United
States, he makes the question, as he has a right to make it,
whether the laws of Georgia under which he is now suffering an
ignominious punishment are not repugnant to the Constitution of the
United States and the treaties and laws made under it. This
repugnancy has been shown, and it remains only to say what has
before been often said by this tribunal of the local laws of many
of the States in this Union -- that, being repugnant to the
Constitution of the United States and to the laws made under it,
they can have no force to divest the plaintiff in error of his
property or liberty.
Mr Justice BALDWIN dissented, stating that, in his opinion, the
record was not properly returned upon the writ of error, and ought
to have been returned by the State court, and not by the clerk of
that Court. As to the merits, he said his opinion remained the same
as was expressed by him in the case of the
Cherokee Nation v.
The State of Georgia at the last term.
The opinion of Mr Justice Baldwin was not delivered to the
reporter.
This cause came on to be heard on the transcript of the record
from the Superior Court for the County of Gwinnett, in the State of
Georgia, and was argued by counsel; on consideration whereof, it is
the opinion of this Court that the act of the legislature of the
State of Georgia upon which the indictment in this case is founded
is contrary to the Constitution, treaties, and laws of the United
States, and that the special plea in bar pleaded by the said Samuel
A. Worcester, in manner aforesaid and relying upon the
Constitution, treaties, and laws of the United States aforesaid, is
a good bar and defence to the said indictment, by the said Samuel
A. Worcester, and, as such, ought to have been allowed and admitted
by the said Superior Court for the county of Gwinnett, in the State
of Georgia, before which the said indictment was pending and tried;
and that there was error in the said Superior Court of the State of
Georgia, in overruling the plea so pleaded as aforesaid. It is
therefore ordered and adjudged that the judgment rendered in
Page 31 U. S. 597
the premises by the said Superior Court of Georgia, upon the
verdict upon the plea of Not guilty afterwards pleaded by the said
Samuel A. Worcester, whereby the said Samuel A. Worcester is
sentenced to hard labour in the penitentiary of the State of
Georgia, ought to be reversed and annulled. And this Court
proceeding to render such judgment as the said Superior Court, of
the State of Georgia should have rendered, it is further ordered
and adjudged that the said judgment of the said Superior Court be,
and hereby is, reversed and annulled, and that judgment be, and
hereby is, awarded that the special plea in bar, so as aforesaid
pleaded, is a good and sufficient plea in bar in law to the
indictment aforesaid, and that all proceedings on the said
indictment do forever surcease, and that the said Samuel A.
Worcester be, and hereby is, henceforth dismissed therefrom, and
that he go thereof quit without day. And that a special mandate do
go from this Court to the said Superior Court to carry this
judgment into execution.
In the case of
Butler, Plaintiff in Error v. The State of
Georgia, the same judgment was given by the Court, and a
special mandate was ordered from the Court to the Superior Court of
Gwinnett county, to carry the judgment into execution.
