Motion for an injunction to prevent the execution of certain
acts of the Legislature of the State of Georgia in the territory of
the Cherokee Nation, on behalf of the Cherokee Nation, they
claiming to proceed in the Supreme Court of the United States as a
foreign state against the State of Georgia under the provision of
the Constitution of the United States which gives to the Court
jurisdiction in controversies in which a State of the United States
or the citizens thereof, and a foreign state, citizens, or subjects
thereof are parties.
The Cherokee Nation is not a foreign state in the sense in which
the terms "foreign state" is used in the Constitution of the United
States.
The third article of the Constitution of the United States
describes the extent of the judicial power. The second section
closes an enumeration of the cases to which it extends with
"controversies between a State or the citizens thereof and foreign
states, citizens or subjects." A subsequent clause of the same
section gives the Supreme Court original jurisdiction in all cases
in which a State shall be a party -- the State of Georgia may then
certainly be sued in this Court.
The Cherokees are a State. They have been uniformly treated as a
State since the settlement of our country. The numerous treaties
made with them by the United States recognise them as a people
capable of maintaining the relations of peace and war; of being
responsible in their political character for any violation of their
engagements, or for any aggression committed on the citizens of the
United States by any individual of their community. Laws have
Page 30 U. S. 2
been enacted in the spirit of these treaties. The acts of our
Government plainly recognise the Cherokee Nation as a State, and
the Courts are bound by those acts.
The condition of the Indians in relation to the United States is
perhaps unlike that of any other two people in existence. In
general, nations not owing a common allegiance are foreign to each
other. The term "foreign nation" is with strict propriety
applicable by either to the other. But the relation of the Indians
to the United States is marked by peculiar and cardinal
distinctions which exist nowhere else.
The Indians are acknowledged to have an unquestionable, and
heretofore an unquestioned, right to the lands they occupy until
that right shall be extinguished by a voluntary cession to our
Government. It may well be doubted whether those tribes which
reside within the acknowledged boundaries of the United States can,
with strict accuracy, be denominated foreign nations. They may more
correctly, perhaps, be denominated domestic dependent nations. They
occupy a territory to which we assert a title independent of their
will, which must take effect in point of possession when their
right of possession ceases; meanwhile, they are in a state of
pupilage. Their relations to the United States resemble that of a
ward to his guardian. They look to our Government for protection,
rely upon its kindness and its power, appeal to it for relief to
their wants, and address the President as their Great Father.
The bill filed on behalf of the Cherokees seeks to restrain a
State from forcible exercise of legislative power over a
neighbouring people asserting their independence, their right to
which the State denies. On several of the matters alleged in the
bill, for example, on the laws making it criminal to exercise the
usual power of self-government in their own country by the Cherokee
Nation, this Court cannot interpose, at least in the form in which
those matters are presented. That part of the bill which respects
the land occupied by the Indians, and prays the aid of the Court to
protect their possessions, may be more doubtful. The mere question
of right might perhaps be decided by this Court in a proper case
with proper parties. But the Court is asked to do more than decide
on the title. The bill requires us to control the Legislature of
Georgia, and to restrain the exertion of its physical force. The
propriety of such an interposition by the Court may well be
questioned. It savours too much of the exercise of political power
to be within the proper province of the Judicial Department.
This case came before the court on a motion on behalf of the
Cherokee Nation of Indians for a subpoena, and for an injunction to
restrain the State of Georgia, the Governor, Attorney General,
judges, justices of the peace, sheriffs, deputy sheriffs,
constables, and others the officers, agents, and servants of that
State from executing and enforcing the laws of Georgia or any of
these laws, or serving process, or doing anything towards the
execution or enforcement of those laws, within the Cherokee
territory, as designated by treaty between the United States and
the Cherokee Nation.
The motion was made, after notice and a copy of the bill
Page 30 U. S. 3
filed at the instance and under the authority of the Cherokee
Nation had been served on the Governor and Attorney General of the
State of Georgia on the 27th December, 1830, and the 1st of
January, 1831. The notice Stated that the motion would be made in
this court on Saturday, the 5th day of March, 1831. The bill was
signed by John Ross, principal chief of the Cherokee Nation, and an
affidavit, in the usual form, of the facts stated in the bill was
annexed; which was sworn to before a justice of the peace of
Richmond County, State of Georgia.
The bill set forth the complainants to be
"the Cherokee Nation of Indians, a foreign state, not owing
allegiance to the United States, nor to any State of this union,
nor to any prince, potentate or State, other than their own."
"That, from time immemorial, the Cherokee Nation have composed a
sovereign and independent State, and in this character have been
repeatedly recognized, and still stand recognized by the United
States, in the various treaties subsisting between their nation and
the United States."
That the Cherokees were the occupants and owners of the
territory in which they now reside before the first approach of the
white men of Europe to the western continent, "deriving their title
from the Great Spirit, who is the common father of the human
family, and to whom the whole earth belongs." Composing the
Cherokee Nation, they and their ancestors have been and are the
sole and exclusive masters of this territory, governed by their own
laws, usages, and customs.
The bill states the grant, by a charter in 1732, of the country
on this continent lying between the Savannah and Alatahama rivers,
by George the Second, "monarch of several islands on the eastern
coast of the Atlantic," the same country being then in the
ownership of several distinct, sovereign, and independent nations
of Indians, and amongst them the Cherokee Nation.
The foundation of this charter, the bill states, is asserted to
be the right of discovery to the territory granted; a ship manned
by the subjects of the king having,
"about two centuries and a half before, sailed along the coast
of the western hemisphere, from the fifty-sixth to the
thirty-eighth degree of north
Page 30 U. S. 4
latitude, and looked upon the face of that coast without even
landing on any part of it."
This right, as affecting the right of the Indian nation, the
bill denies, and asserts that the whole length to which the right
of discovery is claimed to extend among European nations is to give
to the first discoverer the prior and exclusive right to purchase
these lands from the Indian proprietors, against all other European
sovereigns, to which principle the Indians have never assented, and
which they deny to be a principle of the natural law of nations or
obligatory on them.
The bill alleges that it never was claimed under the charter of
George the Second that the grantees had a right to disturb the
self-government of the Indians who were in possession of the
country, and that, on the contrary, treaties were made by the first
adventurers with the Indians by which a part of the territory was
acquired by them for a valuable consideration, and no pretension
was ever made to set up the British laws in the country owned by
the Indians. That various treaties have been, from time to time,
made between the British colony in Georgia; between the State of
Georgia, before her confederation with the other States; between
the confederate States afterwards; and, finally, between the United
States under their present Constitution and the Cherokee Nation, as
well as other nations of Indians, in all of which the Cherokee
Nation and the other nations have been recognized as sovereign and
independent States possessing both the exclusive right to their
territory and the exclusive right of self-government within that
territory. That the various proceedings from time to time had by
the Congress of the United States under the articles of their
confederation, as well as under the present Constitution of the
United States, in relation to the subject of the Indian nations
confirm the same view of the subject.
The bill proceeds to refer to the treaty concluded at Hopewell
on the 28th November, 1785, "between the commissioners of the
United States and headmen and warriors of all the Cherokees;" the
treaty of Holston of the 22d July, 1791, "between the president of
the United States by his duly authorized commissioner, William
Blount, and the chiefs and warriors of the Cherokee Nation of
Indians," and the additional
Page 30 U. S. 5
article of 17th November, 1792, made at Philadelphia by Henry
Knox, the secretary at war, acting on behalf of the United States;
the treaty made at Philadelphia on the 26th June, 1794; the
treaties between the same parties made at Tellico 2d October, 1790;
on the 24th October, 1804; on the 25th October, 1805, and the 27th
October, 1805; the treaty at Washington on the 7th January, 1806,
with the proclamation of that convention by the president, and the
elucidation of that convention of 11th September, 1807; the treaty
between the United States and the Cherokee Nation made at the city
of Washington on the 22d day of March, 1816; another convention
made at the same place, on the same day, by the same parties; a
treaty made at the Cherokee agency on the 8th July, 1807; and a
treaty made at the city of Washington on the 27th February,
1819,
"all of which treaties and conventions were duly ratified and
confirmed by the Senate of the United States, and became
thenceforth, and still are, a part of the supreme law of the
land."
By those treaties, the bill asserts, the Cherokee Nation of
Indians are acknowledged and treated with as sovereign and
independent States, within the boundary arranged by those treaties,
and that the complainants are, within the boundary established by
the treaty of 1719, sovereign and independent, with the right of
self-government, without any right of interference with the same on
the part of any State of the United States. The bill calls the
attention of the court to the particular provisions of those
treaties, "for the purpose of verifying the truth of the general
principles deduced from them."
The bill alleges, from the earliest intercourse between the
United States and the Cherokee Nation, an ardent desire has been
evinced by the United States to lead the Cherokees to a greater
degree of civilization. This is shown by the fourteenth article of
the treaty of Holston, and by the course pursued by the United
States in 1808, when a treaty was made giving to a portion of the
nation which preferred the hunter state a territory on the west of
the Mississippi in exchange for a part of the lower country of the
Cherokees; and assurances were given by the president that those
who chose to remain for the purpose of engaging in the pursuits of
agricultural and civilized life in the country they occupied might
rely "on the
Page 30 U. S. 6
patronage, aid, and good neighbourhood of the United States."
The treaty of 8th July, 1817, was made to carry those promises into
effect, and, in reliance on them, a large cession of lands was
thereby made; and in 1819, on the 27th February, another treaty was
made, the preamble of which recites that a greater part of the
Cherokee Nation had expressed an earnest desire to remain on this
side of the Mississippi, and were desirous to commence those
measures which they deem necessary to the civilization and
preservation of their nation, to give effect to which object
without delay, that treaty was declared to be made, and another
large cession of their lands was thereby made by them to the United
States.
By a reference to the several treaties, it will be seen that a
fund is provided for the establishment of schools, and the bill
asserts that great progress has been made by the Cherokees in
civilization and in agriculture.
They have established a constitution and form of government, the
leading features of which they have borrowed from that of the
United States, dividing their government into three separate
departments, legislative, executive and judicial. In conformity
with this constitution, these departments have all been organized.
They have formed a code of laws, civil and criminal, adapted to
their situation, have erected courts to expound and apply those
laws, and organized an executive to carry them into effect. They
have established schools for the education of their children, and
churches in which the Christian religion is taught; they have
abandoned the hunter state and become agriculturists, mechanics,
and herdsmen; and, under provocations long continued and hard to be
borne, they have observed with fidelity all their engagements by
treaty with the United States.
Under the promised "patronage and good neighbourhood" of the
United States, a portion of the people of the nation have become
civilized Christians and agriculturists, and the bill alleges that,
in these respects, they are willing to submit to a comparison with
their white brethren around them.
The bill claims for the Cherokee Nation the benefit of the
provision in the Constitution that treaties are the supreme law of
the land, and all judges are bound thereby; of the declaration in
the Constitution that no State shall pass any law
Page 30 U. S. 7
impairing the obligation of contracts, and avers that all the
treaties referred to are contracts of the highest character and of
the most solemn obligation. It asserts that the Constitutional
provision that Congress shall have power to regulate commerce with
the Indian tribes is a power which, from its nature, is exclusive,
and consequently forbids all interference by any one of the States.
That Congress have, in execution of this power, passed various
acts, and, among others, the act of 1802, "to regulate trade and
intercourse with the Indian tribes, and to preserve peace on the
frontiers." The objects of these acts are to consecrate the Indian
boundary as arranged by the treaties, and they contain clear
recognitions of the sovereignty of the Indians, and of their
exclusive right to give and to execute the law within that
boundary.
The bill proceeds to state that, in violation of these treaties,
of the Constitution of the United States, and of the Act of
Congress of 1802, the State of Georgia, at a session of her
Legislature held in December in the year 1828, passed an act, which
received the assent of the Governor of that State on the twentieth
day of that month and year, entitled,
"An act to add the territory lying within this State and
occupied by the Cherokee Indians, to the counties of Carroll, De
Kalb, Gwinett, Hall, and Habersham, and to extend the laws of this
State over the same, and for other purposes."
That afterwards, to-wit in the year 1829, the Legislature of the
said State of Georgia passed another act, which received the assent
of the Governor on the 19th December of that year, entitled,
"An act to add the territory lying within the chartered limits
of Georgia, now in the occupancy of the Cherokee Indians, to the
counties of Carroll, De Kalb, Gwinett, 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 processes in
said territory, and to regulate the testimony of Indians, and to
repeal the ninth section of the Act of 1828 on this subject."
The effect of these laws, and their purposes, are stated to be
to parcel out the territory of the Cherokees; to extend all the
laws of Georgia over the same; to abolish the Cherokee laws, and to
deprive the Cherokees of the protection of their laws;
Page 30 U. S. 8
to prevent them, as individuals, from enrolling for emigration,
under the penalty of indictment before the State courts of Georgia;
to make it murder in the officers of the Cherokee government to
inflict the sentence of death in conformity with the Cherokee laws,
subjecting them all to indictment therefor, and death by hanging;
extending the jurisdiction of the justices of the peace of Georgia
into the Cherokee territory, and authorising the calling out of the
militia of Georgia to enforce the process; and finally, declaring
that no Indian, or descendant of any Indian, residing within the
Cherokee Nation of Indians shall be deemed a competent witness in
any court of the State of Georgia, in which a white person may be a
party, except such white person resides within the said nation.
All these laws are averred to be null and void because repugnant
to treaties in full force, to the Constitution of the United
States, and to the Act of Congress of 1802.
The bill then proceeds to State the interference of President
Washington for the protection of the Cherokees, and the resolutions
of the Senate in consequence of his reference of the subject of
intrusions on their territory. That, in 1802, the State of Georgia,
in ceding to the United States a large body of lands within her
alleged chartered limits and imposing a condition that the Indian
title should be peaceably extinguished, admitted the subsisting
Indian title. That cessions of territory have always been
voluntarily made by the Indians in their national character, and
that cessions have been made of as much land as could be spared,
until the cession of 1819,
"when they had reduced their territory into as small a compass
as their own convenience would bear, and they then accordingly
resolved to cede no more."
The bill then refers to the various applications of Georgia to
the United States to extinguish the Indian title by force, and her
denial of the obligations of the treaties with the Cherokees,
although, under these treaties, large additions to her disposable
lands had been made, and states that Presidents Monroe and Adams,
in succession, understanding the articles of cession and agreement
between the State of Georgia and the United States in the year 1802
as binding the United States to extinguish the Indian title so soon
only as it could be done peaceably and on reasonable terms, refused
themselves to apply force to these complainants
Page 30 U. S. 9
or to permit it to be applied by the State of Georgia to drive
them from their possession, but, on the contrary, avowed their
determination to protect these complainants by force, if necessary,
and to fulfil the guarantee given to them by the treaties.
The State of Georgia, not having succeeded in these applications
to the Government of the United States, have resorted to
legislation, intending to force, by those means, the Indians from
their territory. Unwilling to resist by force of arms these
pretensions and efforts, the bill states that application for
protection, and for the execution of the guarantee of the treaties,
has been made by the Cherokees to the present President of the
United States, and they have received for answer "that the
President of the United States has no power to protect them against
the laws of Georgia."
The bill proceeds to refer to the act of Congress of 1830
entitled "An act to provide for an exchange of lands with the
Indians residing in any of the States or territories, and for their
removal west of the Mississippi." The Act is to apply to such of
the Indians as may choose to remove, and by the proviso to it,
nothing contained in the Act shall be construed as authorising or
directing the violation of any existing treaty between the United
States and any of the Indian tribes.
The complainants have not chosen to remove, and this, it is
alleged, it is sufficient for the complainants to say; but they
proceed to state that they are fully satisfied with the country
they possess; the climate is salubrious; it is convenient for
commerce and intercourse; it contains schools in which they can
obtain teachers from the neighbouring States, and places for the
worship of God, where Christianity is taught by missionaries and
pastors easily supplied from the United States. The country,
too,
"is consecrate in their affections from having been immemorially
the property and residence of their ancestors, and from containing
now the graves of their fathers, relatives, and friends."
Little is known of the country west of the Mississippi, and, if
accepted, the bill asserts it will be the grave not only of their
civilization and Christianity, but of the nation itself.
It also alleges that the portion of the nation who emigrated
Page 30 U. S. 10
under the patronage and sanction of the President in 1808 and
1809, and settled on the territory assigned to them on the Arkansas
river, were afterwards required to remove again, and that they did
so under the stipulations of a treaty made in May 1828. The place
to which they removed under this last treaty is said to be exposed
to incursions of hostile Indians, and that they are
"engaged in constant scenes of killing and scalping, and have to
wage a war of extermination with more powerful tribes, before whom
they will ultimately fall."
They have therefore, decidedly rejected the offer of exchange.
The bill then proceeds to state various acts under the authority of
the laws of Georgia in defiance of the treaties referred to, and of
the Constitution of the United States, as expressed in the act of
1802, and that the State of Georgia has declared its determination
to continue to enforce these laws so long as the complainants shall
continue to occupy their territory.
But while these laws are enforced in a manner the most harassing
and vexatious to your complainants, the design seems to have been
deliberately formed to carry no one of these cases to final
decision in the State courts, with the view, as the complainants
believe and therefore allege, to prevent any one of the Cherokee
defendants from carrying those cases to the Supreme Court of the
United States by writ of error for review under the twenty-fifth
section of the act of Congress of the United States, passed in the
year 1789, and entitled "An act to establish the judicial courts of
the United States."
Numerous instances of proceedings are set forth at large in the
bill. The complainants expected protection from these
unconstitutional acts of Georgia by the troops of the United
States, but notice has been given by the commanding officer of
those troops to John Ross, the principal chief of the Cherokee
Nation, that "these troops, so far from protecting the Cherokees,
would cooperate with the civil officers of Georgia in enforcing
their laws upon them." Under these circumstances, it is said that
it cannot but be seen that, unless this court shall interfere, the
complainants have but these alternatives: either to surrender their
lands in exchange for others in the western wilds of this
continent, which would be to seal at once the doom of their
civilization, Christianity, and national
Page 30 U. S. 11
existence; or to surrender their national sovereignty, their
property, rights and liberties, guarantied as these now are by so
many treaties, to the rapacity and injustice of the State of
Georgia; or to arm themselves in defence of these sacred rights,
and fall, sword in hand, on the graves of their fathers.
These proceedings, it is alleged, are wholly inconsistent with
equity and good conscience; tend to the manifest wrong of the
complainants; and violate the faith of the treaties to which
Georgia and the United States are parties, and of the Constitution
of the United States. These wrongs are of a character wholly
irremediable by the common law, and these complainants are wholly
without remedy of any kind except by the interposition of this
honourable Court.
The bill avers that this Court has, by the Constitution and laws
of the United States, original jurisdiction of controversies
between a State and a foreign state, without any restriction as to
the nature of the controversy; that, by the Constitution, treaties
are the supreme law of the land. That, as a foreign state, the
complainants claim the exercise of the powers of the Court of
protect them in their rights, and that the laws of Georgia, which
interfere with their rights and property, shall be declared void,
and their execution be perpetually enjoined.
The bill States that John Ross is "the principal chief and
executive head of the Cherokee Nation," and that, in a full and
regular council of that nation, he has been duly authorised to
institute this and all other suits which may become necessary for
the assertion of the rights of the entire nation.
The bill then proceeds in the usual form to ask and answer to
the allegations contained in it, and
"that the said State of Georgia, her Governor, Attorney General,
judges, magistrates, sheriffs, deputy sheriffs, constables, and all
other her officers, agents, and servants, civil and military, may
be enjoined and prohibited from executing the laws of that State
within the boundary of the Cherokee territory, as prescribed by the
treaties now subsisting between the United States and the Cherokee
Nation, or interfering in any manner with the rights of
self-government possessed by the Cherokee Nation within the limits
of their territory, as defined by the treaty; that the two laws of
Georgia before mentioned as having been passed in the years
Page 30 U. S. 12
1828 and 1829 may, by the decree of this honourable Court, be
declared unconstitutional and void; and that the State of Georgia,
and all her officers, agents, and servants may be forever enjoined
from interfering with the lands, mines and other property, real and
personal, of the Cherokee Nation, or with the persons of the
Cherokee people, for or on account of anything done by them within
the limits of the Cherokee territory; that the pretended right of
the State of Georgia to the possession, government, or control of
the lands, mines, and other property of the Cherokee Nation within
their territory may, by this honourable Court, be declared to be
unfounded and void, and that the Cherokees may be left in the
undisturbed possession, use, and enjoyment of the same, according
to their own sovereign right and pleasure, and their own laws,
usages, and customs, free from any hindrance, molestation, or
interruption by the State of Georgia, her officers, agents, and
servants; that these complainants may be quieted in the possession
of all their rights, privileges, and immunities, under their
various treaties with the United States; and that they may have
such other and farther relief as this honourable Court may deem
consistent with equity and good conscience, and as the nature of
their case may require."
On the day appointed for the hearing, the counsel for the
complainants filed a supplemental bill, sworn to by Richard Taylor,
John Ridge, and W. S. Coodey of the Cherokee Nation of Indians,
before a justice of the peace of the county of Washington in the
district of Columbia.
The supplemental bill states that, since their bill, now
submitted, was drawn, the following acts, demonstrative of the
determination of the State of Georgia to enforce her assumed
authority over the complainants and their territory, property, and
jurisdiction have taken place.
The individual, called in that bill Corn Tassel and mentioned as
having been arrested in the Cherokee territory under process issued
under the laws of Georgia, has been actually hung in defiance of a
writ of error allowed by the Chief Justice of this Court to the
final sentence of the Court of Georgia in his case. That writ of
error, having been received by the Governor of the State, was, as
the complainants are informed and believe, immediately communicated
by him to the Legislature of the
Page 30 U. S. 13
State, then in session, who promptly resolved, in substance,
that the Supreme Court of the United States had no jurisdiction
over the subject, and advised the immediate execution of the
prisoner under the sentence of the State Court, which accordingly
took place.
The complainants beg leave farther to state that the Legislature
of the State of Georgia, at the same session, passed the following
laws, which have received the sanction of the Governor of the
State.
"An act to authorize the survey and disposition of lands within
the limits of Georgia, in the occupancy of the Cherokee tribe of
Indians, and all other unlocated lands within the limits of the
said State, claimed as Creek land; and to authorize the Governor to
call out the military force to protect surveyors in the discharge
of their duties; and to provide for the punishment of persons who
may prevent or attempt to prevent any surveyor from performing his
duties, as pointed out by this act, or who shall wilfully cut down
or deface any marked trees, or remove any landmarks which may be
made in pursuance of this act; and to protect the Indians in the
peaceable possession of their improvements, and of the lots on
which the same may be situate."
Under this law, it is stated that the lands within the boundary
of the Cherokee territory are to be surveyed, and to be distributed
by lottery among the people of Georgia.
At the same session, the Legislature of Georgia passed another
act, entitled "An act to declare void all contracts hereafter made
with the Cherokee Indians, so far as the Indians are concerned,"
which act received the assent of the Governor of the State on the
23d of December, 1830.
The Legislature of Georgia, at its same session, passed another
law, entitled "An act to provide for the temporary disposal of the
improvements and possessions purchased from certain Cherokee
Indians and residents," which act received the assent of the
Governor of the State the 22d December 1830.
At its same session, the Legislature of Georgia passed another
law, 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
Page 30 U. S. 14
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."
At the same session of its Legislature, the State of Georgia
passed another act, entitled
"An act to authorize the Governor to take possession of the
gold, silver, and other mines lying and being in that section of
the chartered limits of Georgia commonly called the Cherokee
country, and those upon all other unappropriated lands of the
State, and for punishing any person or persons who may hereafter be
found trespassing upon the mines."
The supplemental bill further states the proceedings of the
Governor of Georgia, under these laws, and that he has stationed an
armed force of the citizens of Georgia at the gold mines within the
territory of the complainants, who are engaged in enforcing the
laws of Georgia. Additional acts of violence and injustice are said
to have been done under the authority of the laws of Georgia, and
by her officers and agents, within the Cherokee territory.
The complainants allege that the several legislative acts,
herein set forth and referred to, are in direct violation of the
treaties enumerated in their bill, to which this is a supplement,
as well as in direct violation of the Constitution of the United
States, and the act of Congress passed under its authority in the
year 1802, entitled, "An act to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the frontiers."
They pray that this supplement may be taken and received as a
part of their bill; that the several laws of Georgia herein set
forth may be declared by the decree of this Court to be null and
void, on the ground of the repugnancy to the Constitution, laws,
and treaties set forth above, and in the bill to which this is a
supplement; and that these complainants may have the same relief by
injunction and a decree of peace, or otherwise, according to equity
and good conscience, against these laws as against those which are
the subject of their bill as first drawn.
Page 30 U. S. 15
Mr Chief Justice MARSHALL delivered the opinion of the
Court.
This bill is brought by the Cherokee Nation, praying an
injunction to restrain the State of Georgia from the execution of
certain laws of that State which, as is alleged, go directly to
annihilate the Cherokees as a political society and to seize, for
the use of Georgia, the lands of the Nation which have been assured
to them by the United States in solemn treaties repeatedly made and
still in force.
If Courts were permitted to indulge their sympathies, a case
better calculated to excite them can scarcely be imagined. A people
once numerous, powerful, and truly independent, found by our
ancestors in the quiet and uncontrolled possession of an ample
domain, gradually sinking beneath our superior policy, our arts and
our arms, have yielded their lands by successive treaties, each of
which contains a solemn guarantee of the residue, until they retain
no more of their formerly extensive territory than is deemed
necessary to their comfortable subsistence. To preserve this
remnant, the present application is made.
Before we can look into the merits of the case, a preliminary
inquiry presents itself. Has this Court jurisdiction of the
cause?
The third article of the Constitution describes the extent of
the judicial power. The second section closes an enumeration of the
cases to which it is extended, with "controversies" "between a
State or the citizens thereof, and foreign states, citizens, or
subjects." A subsequent clause of the same section gives the
supreme Court original jurisdiction in all
Page 30 U. S. 16
cases in which a State shall be a party. The party defendant may
then unquestionably be sued in this Court. May the plaintiff sue in
it? Is the Cherokee Nation a foreign state in the sense in which
that term is used in the Constitution?
The counsel for the plaintiffs have maintained the affirmative
of this proposition with great earnestness and ability. So much of
the argument as was intended to prove the character of the
Cherokees as a State as a distinct political society, separated
from others, capable of managing its own affairs and governing
itself, has, in the opinion of a majority of the judges, been
completely successful. They have been uniformly treated as a State
from the settlement of our country. The numerous treaties made with
them by the United States recognize them as a people capable of
maintaining the relations of peace and war, of being responsible in
their political character for any violation of their engagements,
or for any aggression committed on the citizens of the United
States by any individual of their community. Laws have been enacted
in the spirit of these treaties. The acts of our Government plainly
recognize the Cherokee Nation as a State, and the Courts are bound
by those acts.
A question of much more difficulty remains. Do the Cherokees
constitute a foreign state in the sense of the Constitution?
The counsel have shown conclusively that they are not a State of
the union, and have insisted that, individually, they are aliens,
not owing allegiance to the United States. An aggregate of aliens
composing a State must, they say, be a foreign state. Each
individual being foreign, the whole must be foreign.
This argument is imposing, but we must examine it more closely
before we yield to it. The condition of the Indians in relation to
the United States is perhaps unlike that of any other two people in
existence. In the general, nations not owing a common allegiance
are foreign to each other. The term foreign nation is, with strict
propriety, applicable by either to the other. But the relation of
the Indians to the United States is marked by peculiar and cardinal
distinctions which exist nowhere else.
Page 30 U. S. 17
The Indian Territory is admitted to compose a part of the United
States. In all our maps, geographical treatises, histories, and
laws, it is so considered. In all our intercourse with foreign
nations, in our commercial regulations, in any attempt at
intercourse between Indians and foreign nations, they are
considered as within the jurisdictional limits of the United
States, subject to many of those restraints which are imposed upon
our own citizens. They acknowledge themselves in their treaties to
be under the protection of the United States; they admit that the
United States shall have the sole and exclusive right of regulating
the trade with them, and managing all their affairs as they think
proper; and the Cherokees, in particular, were allowed by the
treaty of Hopewell, which preceded the Constitution, "to send a
deputy of their choice, whenever they think fit, to Congress."
Treaties were made with some tribes by the State of New York, under
a then unsettled construction of the confederation by which they
ceded all their lands to that State, taking back a limited grant to
themselves in which they admit their dependence.
Though the Indians are acknowledged to have an unquestionable,
and heretofore unquestioned right to the lands they occupy, until
that right shall be extinguished by a voluntary cession to our
government, yet it may well be doubted whether those tribes which
reside within the acknowledged boundaries of the United States can,
with strict accuracy, be denominated foreign nations. They may,
more correctly, perhaps, be denominated domestic dependent nations.
They occupy a territory to which we assert a title independent of
their will, which must take effect in point of possession when
their right of possession ceases. Meanwhile they are in a state of
pupilage. Their relation to the United States resembles that of a
ward to his guardian.
They look to our government for protection; rely upon its
kindness and its power; appeal to it for relief to their wants; and
address the President as their Great Father. They and their country
are considered by foreign nations, as well as by ourselves, as
being so completely under the sovereignty and dominion of the
United States that any attempt to acquire their lands, or to form a
political connexion with them, would
Page 30 U. S. 18
be considered by all as an invasion of our territory and an act
of hostility.
These considerations go far to support the opinion that the
framers of our Constitution had not the Indian tribes in view when
they opened the courts of the union to controversies between a
State or the citizens thereof, and foreign states.
In considering this subject, the habits and usages of the
Indians in their intercourse with their white neighbours ought not
to be entirely disregarded. At the time the Constitution was
framed, the idea of appealing to an American court of justice for
an assertion of right or a redress of wrong had perhaps never
entered the mind of an Indian or of his tribe. Their appeal was to
the tomahawk, or to the Government. This was well understood by the
Statesmen who framed the Constitution of the United States, and
might furnish some reason for omitting to enumerate them among the
parties who might sue in the courts of the union. Be this as it
may, the peculiar relations between the United States and the
Indians occupying our territory are such that we should feel much
difficulty in considering them as designated by the term foreign
state were there no other part of the Constitution which might shed
light on the meaning of these words. But we think that, in
construing them, considerable aid is furnished by that clause in
the eighth section of the third article which empowers Congress to
"regulate commerce with foreign nations, and among the several
States, and with the Indian tribes."
In this clause, they are as clearly contradistinguished by a
name appropriate to themselves from foreign nations as from the
several States composing the union. They are designated by a
distinct appellation, and as this appellation can be applied to
neither of the others, neither can the appellation distinguishing
either of the others be in fair construction applied to them. The
objects to which the power of regulating commerce might be directed
are divided into three distinct classes -- foreign nations, the
several States, and Indian tribes. When forming this article, the
convention considered them as entirely distinct. We cannot assume
that the distinction was lost in framing a subsequent article
unless there be something in its language to authorize the
assumption.
The counsel for the plaintiffs contend that the words
Page 30 U. S. 19
"Indian tribes" were introduced into the article empowering
Congress to regulate commerce for the purpose of removing those
doubts in which the management of Indian affairs was involved by
the language of the ninth article of the confederation. Intending
to give the whole power of managing those affairs to the government
about to be instituted, the convention conferred it explicitly, and
omitted those qualifications which embarrassed the exercise of it
as granted in the confederation. This may be admitted without
weakening the construction which has been intimated. Had the Indian
tribes been foreign nations in the view of the convention, this
exclusive power of regulating intercourse with them might have
been, and most probably would have been, specifically given in
language indicating that idea, not in language contradistinguishing
them from foreign nations. Congress might have been empowered "to
regulate commerce with foreign nations, including the Indian
tribes, and among the several States." This language would have
suggested itself to statesmen who considered the Indian tribes as
foreign nations, and were yet desirous of mentioning them
particularly.
It has been also said that the same words have not necessarily
the same meaning attached to them when found in different parts of
the same instrument -- their meaning is controlled by the context.
This is undoubtedly true. In common language, the same word has
various meanings, and the peculiar sense in which it is used in any
sentence is to be determined by the context. This may not be
equally true with respect to proper names. "Foreign nations" is a
general term, the application of which to Indian tribes, when used
in the American Constitution, is at best extremely questionable. In
one article in which a power is given to be exercised in regard to
foreign nations generally, and to the Indian tribes particularly,
they are mentioned as separate in terms clearly
contradistinguishing them from each other. We perceive plainly that
the Constitution in this article does not comprehend Indian tribes
in the general term "foreign nations," not, we presume, because a
tribe may not be a nation, but because it is not foreign to the
United States. When, afterwards, the term "foreign state" is
introduced, we cannot impute to the convention the intention to
desert its former meaning and to comprehend Indian tribes within it
unless the context force that
Page 30 U. S. 20
construction on us. We find nothing in the context, and nothing
in the subject of the article, which leads to it.
The Court has bestowed its best attention on this question, and,
after mature deliberation, the majority is of opinion that an
Indian tribe or Nation within the United States is not a foreign
state in the sense of the Constitution, and cannot maintain an
action in the Courts of the United States.
A serious additional objection exists to the jurisdiction of the
Court. Is the matter of the bill the proper subject for judicial
inquiry and decision? It seeks to restrain a State from the
forcible exercise of legislative power over a neighbouring people,
asserting their independence, their right to which the State
denies. On several of the matters alleged in the bill, for example,
on the laws making it criminal to exercise the usual powers of
self-government in their own country by the Cherokee Nation, this
Court cannot interpose, at least in the form in which those matters
are presented.
That part of the bill which respects the land occupied by the
Indians, and prays the aid of the Court to protect their possession
may be more doubtful. The mere question of right might perhaps be
decided by this Court in a proper case with proper parties. But the
Court is asked to do more than decide on the title. The bill
requires us to control the Legislature of Georgia, and to restrain
the exertion of its physical force. The propriety of such an
interposition by the Court may be well questioned. It savours too
much of the exercise of political power to be within the proper
province of the judicial department. But the opinion on the point
respecting parties makes it unnecessary to decide this
question.
If it be true that the Cherokee Nation have rights, this is not
the tribunal in which those rights are to be asserted. If it be
true that wrongs have been inflicted, and that still greater are to
be apprehended, this is not the tribunal which can redress the past
or prevent the future.
The motion for an injunction is denied.
Mr. Justice JOHNSON.
In pursuance of my practice in giving an opinion on all
Constitutional questions, I must present my views on this. With the
morality of the case I have no concern; I am called upon to
consider it as a legal question.
Page 30 U. S. 21
The object of this bill is to claim the interposition of this
Court as the means of preventing the State of Georgia, or the
public functionaries of the State of Georgia, from asserting
certain rights and powers over the country and people of the
Cherokee Nation.
It is not enough, in order to come before this Court for relief,
that a case of injury, or of cause to apprehend injury, should be
made out. Besides having a cause of action, the complainant must
bring himself within that description of parties, who alone are
permitted, under the Constitution, to bring an original suit to
this Court.
It is essential to such suit that a State of this union should
be a party; so says the second member of the second section of the
third article of the Constitution; the other party must, under the
control of the Eleventh Amendment, be another State of the union,
or a foreign state. In this case, the averment is that the
complainant is a foreign state.
Two preliminary questions then present themselves.
1. Is the complainant a foreign state in the sense of the
Constitution?
2. Is the case presented in the bill one of judicial
cognizance?
Until these questions are disposed of, we have no right to look
into the nature of the controversy any farther than is necessary to
determine them. The first of the questions necessarily resolves
itself into two: 1. Are the Cherokees a State? 2. Are they a
foreign state?
1. I cannot but think that there are strong reasons for doubting
the applicability of the epithet "state" to a people so low in the
grade of organized society as our Indian tribes most generally are.
I would not here be understood as speaking of the Cherokees under
their present form of government, which certainly must be classed
among the most approved forms of civil government. Whether it can
be yet said to have received the consistency which entitles that
people to admission into the family of nations is, I conceive, yet
to be determined by the executive of these States. Until then, I
must think that we cannot recognize it as an existing State,
Page 30 U. S. 22
under any other character than that which it has maintained
hitherto as one of the Indian tribes or nations.
There are great difficulties hanging over the question, whether
they can be considered as States under the Judiciary Article of the
Constitution. 1. They never have been recognized as holding
sovereignty over the territory they occupy. It is in vain now to
inquire into the sufficiency of the principle that discovery gave
the right of dominion over the country discovered. When the
populous and civilized nations beyond the Cape of Good Hope were
visited, the right of discovery was made the ground of an exclusive
right to their trade, and confined to that limit. When the eastern
coast of this continent, and especially the part we inhabit, was
discovered, finding it occupied by a race of hunters, connected in
society by scarcely a semblance of organic government, the right
was extended to the absolute appropriation of the territory, the
annexation of it to the domain of the discoverer. It cannot be
questioned that the right of sovereignty, as well as soil, was
notoriously asserted and exercised by the European discoverers.
From that source we derive our rights, and there is not an instance
of a cession of land from an Indian nation in which the right of
sovereignty is mentioned as a part of the matter ceded.
It may be suggested that they were uniformly cessions of land
without inhabitants, and therefore words competent to make a
cession of sovereignty were unnecessary. This, however, is not a
full answer, since soil, as well as people, is the object of
sovereign action, and may be ceded with or without the sovereignty,
or may be ceded with the express stipulation that the inhabitants
shall remove. In all the cessions to us from the civilized states
of the old world, and of our transfers among ourselves, although of
the same property, under the same circumstances, and even when
occupied by these very Indians, the express cession of sovereignty
is to be found.
In the very treaty of Hopewell, the language or evidence of
which is appealed to as the leading proof of the existence of this
supposed State, we find the commissioners of the United States
expressing themselves in these terms.
"The commissioners plenipotentiary of the United States give
peace to all the Cherokees, and receive them into the favour and
protection of the
Page 30 U. S. 23
United States on the following conditions."
This is certainly the language of sovereigns and conquerors, and
not the address of equals to equals. And again, when designating
the country they are to be confined to, comprising the very
territory which is the subject of this bill, they say, "Art. 4. The
boundary allotted to the Cherokees for their hunting grounds" shall
be as therein described. Certainly this is the language of
concession on our part, not theirs, and when the full bearing and
effect of those words, "for their hunting grounds" is considered,
it is difficult to think that they were then regarded as a State,
or even intended to be so regarded. It is clear that it was
intended to give them no other rights over the territory than what
were needed by a race of hunters, and it is not easy to see how
their advancement beyond that State of society could ever have been
promoted, or, perhaps, permitted, consistently with the
unquestioned rights of the States, or United States, over the
territory within their limits. The preemptive right, and exclusive
right of conquest in case of war, was never questioned to exist in
the States which circumscribed the whole or any part of the Indian
grounds or territory. To have taken it from them by direct means
would have been a palpable violation of their rights. But every
advance from the hunter state to a more fixed state of society must
have a tendency to impair that preemptive right, and ultimately to
destroy it altogether, both by increasing the Indian population and
by attaching them firmly to the soil. The hunter state bore within
itself the promise of vacating the territory because, when game
ceased, the hunter would go elsewhere to seek it. But a more fixed
state of society would amount to a permanent destruction of the
hope, and, of consequence, of the beneficial character, of the
preemptive right.
But it is said, that we have extended to them the means and
inducement to become agricultural and civilized. It is true: and
the immediate object of that policy was so obvious as probably to
have intercepted the view of ulterior consequences. Independently
of the general influence of humanity, these people were restless,
warlike, and signally cruel in their irruptions during the
revolution. The policy, therefore, of enticing them to the arts of
peace, and to those improvements which war might lay desolate, was
obvious, and it was wise
Page 30 U. S. 24
to prepare them for what was probably then contemplated, to-wit,
to incorporate them in time into our respective governments -- a
policy which their inveterate habits and deep-seated enmity has
altogether baffled. But the project of ultimately organizing them
into States, within the limits of those States which had not ceded
or should not cede to the United States the jurisdiction over the
Indian territory within their bounds, could not possibly have
entered into the contemplation of our government. Nothing but
express authority from the States could have justified such a
policy, pursued with such a view. To pursue this subject a little
more categorically.
If these Indians are to be called a State, then,
1. By whom are they acknowledged as such?
2. When did they become so?
3. And what are the attributes by which they are identified with
other States.
As to the first question, it is clear that, as a State ,they are
known to nobody on earth but ourselves, if to us; how then can they
be said to be recognized as a member of the community of nations?
Would any nation on earth treat with them as such? Suppose, when
they occupied the banks of the Mississippi or the sea coast of
Florida, part of which in fact the Seminoles now occupy, they had
declared war and issued letters of marque and reprisal against us
or Great Britain -- would their commissions be respected? If known
as a State, it is by us and us alone, and what are the proofs? The
treaty of Hopewell does not even give them a name other than that
of the Indians; not even nation or state, but regards them as what
they were, a band of hunters, occupying as hunting grounds, just
what territory we chose to allot them. And almost every attribute
of sovereignty is renounced by them in that very treaty. They
acknowledge themselves to be under the sole and exclusive
protection of the United States. They receive the territory
allotted to them as a boon from a master or conqueror; the right of
punishing intruders into that territory is conceded, not asserted
as a right; and the sole and exclusive right of regulating their
trade and managing all their affairs in such manner as the
government of the United States shall think proper, amounting in
terms to a relinquishment of all
Page 30 U. S. 25
power, legislative, executive and judicial to the United States,
is yielded in the ninth article.
It is true that the twelfth article gives power to the Indians
to send a deputy to Congress, but such deputy, though dignified by
the name, was nothing and could be nothing but an agent such as any
other company might be represented by. It cannot be supposed that
he was to be recognized as a minister, or to sit in the Congress as
a delegate. There is nothing express and nothing implied that would
clothe him with the attributes of either of these characters. As to
a seat among the delegates, it could not be granted to him.
There is one consequence that would necessarily flow from the
recognition of this people as a state which, of itself, must
operate greatly against its admission.
Where is the rule to stop? Must every petty kraal of Indians,
designating themselves a tribe or nation, and having a few hundred
acres of land to hunt on exclusively, be recognized as a State? We
should indeed force into the family of nations, a very numerous and
very heterogeneous progeny. The Catawbas, having indeed a few more
acres than the republic of San Marino, but consisting only of
eighty or an hundred polls, would then be admitted to the same
dignity. They still claim independence, and actually execute their
own penal laws, such as they are, even to the punishment of death,
and have recently done so. We have many ancient treaties with them,
and no nation has been more distinctly recognized, as far as such
recognition can operate to communicate the character of a
State.
But secondly, at what time did this people acquire the character
of a State?
Certainly not by the treaty of Hopewell, for every provision of
that treaty operates to strip it of its sovereign attributes, and
nothing subsequent adds anything to that treaty, except using the
word Nation instead of Indians. And as to that article in the
treaty of Holston, and repeated in the treaty of Tellico, which
guaranties to them their territory, since both those treaties refer
to and confirm the treaty of Hopewell, on what principle can it be
contended that the guarantee can go farther than to secure to them
that right over the territory, which is conceded by the Hopewell
treaty, which interest is only that of hunting grounds. The general
policy of the
Page 30 U. S. 26
United States, which always looked to these Indian lands as a
certain future acquisition, not less than the express words of the
treaty of Hopewell, must so decide the question.
If they were not regarded as one of the family of nations at the
time of that treaty, even though at that time first subdued and
stripped of the attributes of a State, it is clear that, to be
regarded now as a State, they must have resumed their rank among
nations at some subsequent period. But at what subsequent period?
Certainly by no decisive act until they organized themselves
recently into a government, and I have before remarked that, until
expressly recognized by the executive under that form of
government, we cannot recognize any change in their form of
existence. Others have a right to be consulted on the admission of
new States into the national family. When this country was first
appropriated or conquered by the crown of Great Britain, they
certainly were not known as members of the community of nations,
and if they had been, Great Britain from that time blotted them
from among the race of sovereigns. From that time, Great Britain
considered them as her subjects whenever she chose to claim their
allegiance, and their country as hers, both in soil and
sovereignty. All the forbearance exercised towards them was
considered as voluntary, and as their trade was more valuable to
her than their territory, for that reason, and not from any
supposed want of right to extend her laws over them, did she
abstain from doing so.
And, thirdly, by what attributes is the Cherokee Nation
identified with other States?
The right of sovereignty was expressly assumed by Great Britain
over their country at the first taking possession of it, and has
never since been recognized as in them otherwise than as dependent
upon the will of a superior.
The right of legislation is in terms conceded to Congress by the
treaty of Hopewell, whenever they choose to exercise it. And the
right of soil is held by the feeble tenure of hunting grounds, and
acknowledged on all hands subject to a restriction to sell to no
one but the United States, and for no use but that of Georgia.
They have in Europe sovereign and demi-sovereign States, and
States of doubtful sovereignty. But this State, if it be
Page 30 U. S. 27
a State, is still a grade below them all, for not to be able to
alienate without permission of the remainderman or lord places them
in a state of feudal dependence.
However, I will enlarge no more upon this point, because I
believe, in one view and in one only, if at all, they are or may be
deemed a State, though not a sovereign State, at least while they
occupy a country within our limits. Their condition is something
like that of the Israelites, when inhabiting the deserts. Though
without land that they can call theirs in the sense of property,
their right of personal self-government has never been taken from
them, and such a form of government may exist though the land
occupied be in fact that of another. The right to expel them may
exist in that other, but the alternative of departing and retaining
the right of self-government may exist in them. And such they
certainly do possess; it has never been questioned, nor any attempt
made at subjugating them as a people or restraining their personal
liberty except as to their land and trade.
But in no sense can they be deemed a foreign state under the
Judiciary Article.
It does seem unnecessary on this point to do more than put the
question whether the makers of the Constitution could have intended
to designate them, when using the epithets "foreign" and "state."
"State" and "foreign state" are used in contradistinction to each
other. We had then just emerged ourselves from a situation having
much stronger claims than the Indians for admission into the family
of nations, and yet we were not admitted until we had declared
ourselves no longer provinces, but States, and shown some
earnestness and capacity in asserting our claim to be enfranchised.
Can it then be supposed that, when using those terms, we meant to
include any others than those who were admitted into the community
of nations, of whom most notoriously the Indians were no part?
The argument is that they were States, and if not States of the
union, must be foreign states. But I think it very clear that the
Constitution neither speaks of them as States or foreign states,
but as just what they were, Indian tribes, an anomaly unknown to
the books that treat of States, and which the law of nations would
regard as nothing more than wandering hordes, held together only by
ties of blood and habit, and
Page 30 U. S. 28
having neither laws or government beyond what is required in a
savage state. The distinction is clearly made in that section which
vests in Congress power to regulate commerce between the United
States with foreign nations and the Indian tribes.
The language must be applied in one of three senses: either in
that of the law of nations, or of the vernacular use, or that of
the Constitution. In the first, although it means any State not
subject to our laws, yet it must be a State, and not a hunter
horde; in the vernacular, it would not be applied to a people
within our limits and at our very doors; and in the Constitution,
the two epithets are used in direct contradistinction. The latter
words were unnecessary if the first included the Indian tribes.
There is no ambiguity, though taken literally; and if there were,
facts and circumstances altogether remove it.
But, had I been sitting alone in this cause, I should have
waived the consideration of personal description altogether, and
put my rejection of this motion upon the nature of the claim set
up, exclusively.
I cannot entertain a doubt that it is one of a political
character altogether, and wholly unfit for the cognizance of a
judicial tribunal. There is no possible view of the subject, that I
can perceive, in which a Court of justice can take jurisdiction of
the questions made in the bill. The substance of its allegations
may be thus set out.
That the complainants have been from time immemorial lords of
the soil they occupy. That the limits by which they hold it have
been solemnly designated and secured to them by treaty and by laws
of the United States. That, within those limits, they have
rightfully exercised unlimited jurisdiction, passing their own laws
and administering justice in their own way. That, in violation of
their just rights so secured to them, the State of Georgia has
passed laws authorizing and requiring the executive and judicial
powers of the State to enter their territory and put down their
public functionaries. That, in pursuance of those laws, the
functionaries of Georgia have entered their territory with an armed
force and put down all powers legislative, executive. and judicial
exercised under the government of the Indians.
What does this series of allegations exhibit but a State
Page 30 U. S. 29
of war and the fact of invasion? They allege themselves to be a
sovereign independent State, and set out that another sovereign
State has, by its laws, its functionaries, and its armed force,
invaded their State and put down their authority. This is war in
fact; though not being declared with the usual solemnities, it may
perhaps be called war in disguise. And the contest is distinctly a
contest for empire. It is not a case of
meum and
tuum in the judicial, but in the political, sense. Not an
appeal to laws, but to force. A case in which a sovereign
undertakes to assert his right upon his sovereign responsibility;
to right himself, and not to appeal to any arbiter but the sword,
for the justice of his cause. If the State of Maine were to extend
its laws over the province of New Brunswick, and send its
magistrates to carry them into effect, it would be a parallel case.
In the
Nabob of Arcot's Case, 4 Bro.Cha.Ca. and 1 and 2
Vesey, Jun., a case of a political character not one half so
strongly marked as this, the Courts of Great Britain refused to
take jurisdiction because it had its origin in treaties entered
into between sovereign States -- a case in which the appeal is to
the sword and to Almighty justice, and not to Courts of law or
equity. In the exercise of sovereign right, the sovereign is sole
arbiter of his own justice. The penalty of wrong is war and
subjugation.
But there is still another ground in this case which alone would
have prevented me from assuming jurisdiction, and that is the utter
impossibility of doing justice, at least evenhanded justice,
between the parties. As to restoring the complainant to the
exercise of jurisdiction, it will be seen at once that that is no
case for the action of a court; and as to quieting him in
possession of the soil, what is the case on which the complainant
would have this Court to act? Either the Cherokee Nation are a
foreign state or they are not. If they are not, then they cannot
come here, and if they are, then how can we extend our jurisdiction
into their country?
We are told that we can act upon the public functionaries in the
State of Georgia, without the limits of the nation. But suppose
that Georgia should file a cross-bill, as she certainly may if we
can entertain jurisdiction in this case, and should in her bill
claim to be put in possession of the whole Indian country, and we
should decide in her favour; how is
Page 30 U. S. 30
that decree to be carried into effect? Say as to soil; as to
jurisdiction, it is not even to be considered. From the
complainant's own showing, we could not do justice between the
parties. Nor must I be considered as admitting that this Court
could, even upon the other alternative, exercise a jurisdiction
over the person respecting lands under the jurisdiction of a
foreign nation. I know of no such instance. In
Penn v. Lord
Baltimore, the persons were in England and the land within the
king's dominions though in America.
There is still another view in which this cause of action may be
considered in regard to its political nature. The United States
finding themselves involved in conflicting treaties, or at least in
two treaties respecting the same property, under which two parties
assert conflicting claims; one of the parties, putting itself upon
its sovereign right, passes laws which in effect declare the laws
and treaties under which the other party claims, null and void. It
proceeds to carry into effect those laws by means of physical
force, and the other party appeals to the executive department for
protection. Being disappointed there, the party appeals to this
Court, indirectly to compel the executive to pursue a course of
policy which his sense of duty or ideas of the law may indicate
should not be pursued. That is to declare war against a State, or
to use the public force to repel the force and resist the laws of a
State, when his judgment tells him the evils to grow out of such a
course may be incalculable.
What these people may have a right to claim of the executive
power is one thing; whether we are to be the instruments to compel
another branch of the government to make good the stipulations of
treaties is a very different question. Courts of justice are
properly excluded from all considerations of policy, and therefore
are very unfit instruments to control the action of that branch of
government. which may often be compelled by the highest
considerations of public policy to withhold even the exercise of a
positive duty.
There is then a great deal of good sense in the rule laid down
in the
Nabob of Arcot's Case, to-wit, that, as between
sovereigns, breaches of treaty were not breaches of contract
cognizable in a Court of justice, independent of the general
principle that, for their political acts, States were not amenable
to tribunals of justice.
Page 30 U. S. 31
There is yet another view of this subject which forbids our
taking jurisdiction. There is a law of the United States which
purports to make every trespass set out in the bill to be an
offence cognizable in the Courts of the United States. I mean the
Act of 1802, which makes it penal to violate the Indian
territory.
The infraction of this law is, in effect, the burden of
complaint. What then in fact is this bill but a bill to obtain an
injunction against the commission of crimes? If their territory has
been trespassed upon against the provisions of that act, no law of
Georgia could repeal that act or justify the violation of its
provisions. And the remedy lies in another Court and form of
action, or another branch of jurisprudence.
I cannot take leave of the case without one remark upon the
leading argument on which the exercise of jurisdiction here over
cases occurring in the Indian country has been claimed for the
complainant. Which was that the United States in fact exercised
jurisdiction over it by means of this and other acts, to punish
offences committed there.
But this argument cannot bear the test of principle. For the
jurisdiction of a country may be exercised over her citizens
wherever they are, in right of their allegiance, as it has been in
the instance of punishing offences committed against the Indians.
And, also, both under the Constitution and the treaty of Hopewell,
the power of Congress extends to regulating their trade,
necessarily within their limits. But this cannot sanction the
exercise of jurisdiction beyond the policy of the acts themselves,
which are altogether penal in their provisions.
I vote for rejecting the motion.
Mr. Justice BALDWIN.
As jurisdiction is the first question which must arise in every
cause, I have confined my examination of this entirely to that
point, and that branch of it which relates to the capacity of the
plaintiffs to ask the interposition of this Court. I concur in the
opinion of the Court in dismissing the bill, but not for the
reasons assigned.
In my opinion there is no plaintiff in this suit, and this
opinion precludes any examination into the merits of the bill or
the weight of any minor objections. My judgment stops
Page 30 U. S. 32
me at the threshold, and forbids me to examine into the acts
complained of.
As the reasons for the judgment of the Court seem to me more
important than the judgment itself in its effects on the peace of
the country and the condition of the complainants, and as I stand
alone on one question of vital concern to both, I must give my
reasons in full. The opinion of this Court is of high authority in
itself, and the judge who delivers it has a support as strong in
moral influence over public opinion as any human tribunal can
impart. The judge who stands alone in decided dissent on matters of
the infinite magnitude which this case presents must sink under the
continued and unequal struggle unless he can fix himself by a firm
hold on the Constitution and laws of the country. He must be
presumed to be in the wrong until he proves himself to be in the
right. Not shrinking even from this fearful issue, I proceed to
consider the only question which I shall ever examine in relation
to the rights of Indians to sue in the federal Courts until
convinced of my error in my present convictions.
My view of the plaintiffs being a sovereign independent nation
or foreign state, within the meaning of the Constitution, applies
to all the tribes with whom the Unites States have held treaties,
for if one is a foreign nation or State, all others in like
condition must be so in their aggregate capacity, and each of their
subjects or citizens, aliens, capable of suing in the circuit
Courts. This case then is the case of the countless tribes who
occupy tracts of our vast domain; who, in their collective and
individual characters as States or aliens, will rush to the federal
Courts in endless controversies growing out of the laws of the
States or of Congress.
In the spirit of the maxim
obsta principiis, I shall
first proceed to the consideration of the proceedings of the old
Congress, from the commencement of the revolution up to the
adoption of the Constitution, so as to ascertain whether the
Indians were considered and treated with as tribes of savages, or
independent nations, foreign states on an equality with any other
foreign state or nation, and whether Indian affairs were viewed as
those of foreign nations, and, in connection with this view, refer
to the acts of the federal government on the same subject.
Page 30 U. S. 33
In 1781, 1 Laws U.S. 586 &c., a department for foreign
affairs was established to which was entrusted all correspondence
and communication with the ministers or other officers of foreign
powers, to be carried on through that office also with the
Governors and Presidents of the several States, and to receive the
applications of all foreigners, letters of sovereign powers, plans
of treaties, conventions, &c. and other acts of Congress
relative to the department of foreign affairs, and all
communications as well to as from the United States in Congress
assembled were to be made through the secretary, and all papers on
the subject of foreign affairs to be addressed to him. The same
department was established under the present Constitution in 1789,
and with the same exclusive control over all the foreign concerns
of this government with foreign states or princes. 2 Laws U.S. 6,
7. In July, 1775, Congress established a department of Indian
affairs, to be conducted under the superintendence of
commissioners. 1 Laws U.S. 597. By the Ordinance of August, 1786,
for the regulation of Indian affairs, they were placed under the
control of the War Department, 1 Laws U.S. 614, continued there by
the Act of August, 1789 (2 Laws U.S. 32, 33), under whose direction
they have ever since remained. It is clear then, that neither the
old or new government did ever consider Indian affairs, the
regulation of our intercourse or treaties with them, as forming any
part of our foreign affairs or concerns with foreign nations,
States, or princes.
I will next inquire how the Indians were considered -- whether
as independent nations or tribes with whom our intercourse must be
regulated by the law of circumstances. In this examination it will
be found that different words have been applied to them in treaties
and resolutions of Congress -- nations, tribes, hordes, savages,
chiefs, sachems and warriors of the Cherokees for instance, or the
Cherokee Nation. I shall not stop to inquire into the effect which
a name or title can give to a resolve of Congress, a treaty or
convention with the Indians, but into the substance of the thing
done, and the subject matter acted on, believing it requires no
reasoning to prove that the omission of the words prince, State,
sovereignty or nation, cannot divest a contracting party of
these
Page 30 U. S. 34
national attributes, which are inherent in sovereign power pure
and self-existing, or confer them by their use, where all the
substantial requisites of sovereignty are wanting.
The proceedings of the old Congress will be found in 1 Laws U.S.
597, commencing 1st. June, 1775, and ending 1st September, 1788, of
which some extracts will be given. 30th June, 1775:
"Resolved, that the committee for Indian affairs do prepare
proper talks to the several tribes of Indians. As the Indians
depend on the colonists for arms, ammunition and clothing, which
are become necessary for their subsistence. . . . That the
commissioners have power to treat with the Indians; . . . to take
to their assistance gentlemen of influence among the Indians. . . .
To preserve the confidence and friendship of the Indians, and
prevent their suffering for want of the necessaries of life,
๏ฟฝ40,000 sterling of Indian goods be imported. . . . No person shall
be permitted to trade with the Indians without a licence; . . .
traders shall sell their goods at reasonable prices, allow them to
the Indians for their skins, and take no advantage of their
distress and intemperance; . . . the trade to be only at posts
designated by the commissioners."
Specimens of the kind of intercourse between the Congress and
deputations of Indians may be seen in pages 602 and 603. They need
no incorporation into a judicial opinion.
In 1782, a committee of Congress report that all the lands
belonging to the six nations of Indians have been in due form put
under the crown as appendant to the government of New York, so far
as respects jurisdiction only; that that colony has borne the
burthen of protecting and supporting the six nations of Indians and
their tributaries for one hundred years, as the dependents and
allies of that government; that the crown of England has always
considered and treated the country of the six nations as one
appendant to the government of New York; that they have been so
recognized and admitted by their public acts by Massachusetts,
Connecticut, Pennsylvania, Maryland and Virginia; that, by
accepting this cession, the jurisdiction of the whole western
territory, belonging to the six nations and their tributaries, will
be vested in the United States, greatly to the advantage of the
union [p. 606]. The cession alluded to is the
Page 30 U. S. 35
one from New York, March 1st, 1781, of the soil and jurisdiction
of all the land in their charter west of the present boundary of
Pennsylvania (1 Laws U.S. 471), which was executed in Congress and
accepted.
This makes it necessary to break in on the historical trace of
our Indian affairs, and follow up this subject to the adoption of
the Constitution. The cession from Virginia in 1784 was of soil and
jurisdiction. So from Massachusetts in 1785, from Connecticut in
1800, from South Carolina in 1787, from Georgia in 1802. North
Carolina made a partial cession of land, but a full one of her
sovereignty and jurisdiction of all without her present limits in
1789. 2 Laws United States 85.
Some States made reservations of lands to a small amount, but,
by the terms of the cession, new States were to be formed within
the ceded boundaries, to be admitted into the union on an equal
footing with the original States, of course, not shorn of their
powers of sovereignty and jurisdiction within the boundaries
assigned by Congress to the new States. In this spirit, Congress
passed the celebrated Ordinance of July, 1787, by which they
assumed the government of the Northwestern Territory, paying no
regard to Indian jurisdiction, sovereignty, or their political
rights, except providing for their protection, authorizing the
adoption of laws
"which, for the prevention of crimes and injuries, shall have
force in all parts of the district, and for the execution of
process civil and criminal, the Governor has power to make proper
division thereof."
1 Laws United States 477. By the fourth article, the said
territory, and the States which may be formed therein, shall
forever remain a part of this confederacy of the United States,
subject to the Articles of Confederation, alterations
constitutionally made, the acts and ordinances of Congress.
This shows the clear meaning and understanding of all the ceding
States, and of Congress, in accepting the cession of their western
lands up to the time of the adoption of the Constitution. The
application of these acts to the provisions of the Constitution
will be considered hereafter. A few more references to the
proceedings of the old Congress in relation to the Indian nations
will close this view of the case.
Page 30 U. S. 36
In 1782, a committee, to whom was referred a letter from the
secretary at war, reported
"that they have had a conference with the two deputies from the
Catawba Nation of Indians; that their mission respects certain
tracts of land reserved for their use in the State of South
Carolina, which they wish may be so secured to their tribe, as not
to be intruded into by force, nor alienated even with their own
consent -- whereupon, resolved, that it be recommended to the
Legislature of South Carolina to take such measures for the
satisfaction and security of the said tribe as the said Legislature
shall in their wisdom think fit."
1 Laws United States 667. After this, the Catawbas cannot well
be considered an independent nation or foreign state. In September,
1783, shortly after the preliminary treaty of peace, Congress,
exercising the powers of acknowledged independence and sovereignty,
issued a proclamation beginning in these words:
"Whereas, by the ninth of the articles of confederation, it is,
among other things declared that the United States, in Congress
assembled, have the sole and exclusive right and power of
regulating the trade, and managing all affairs with the Indians not
members of any of the States, provided that the legislative right
of every State, within its own limits, be not infringed or
violated,"
prohibiting settlements on lands inhabited or claimed by
Indians, without the limits or jurisdiction of any particular
State, and from purchasing or receiving gifts of land without the
express authority and directions of the United States in Congress
assembled. Conventions were to be held with the Indians in the
northern and middle departments for the purpose of receiving them
into the favour and protection of the United States, and of
establishing boundary lines of property, for separating and
dividing the settlements of the citizens from the Indian villages
and hunting grounds, &c.
"Resolved that the preceding measures of Congress, relative to
Indian affairs, shall not be construed to affect the territorial
claims of any of the States, or their legislative rights within
their respective limits. Resolved, that it will be wise and
necessary to erect a district of the western territory into a
distinct government, and that a committee be appointed to prepare a
plan for a temporary government until the inhabitants shall form a
permanent Constitution
Page 30 U. S. 37
for themselves, and as citizens of a free, sovereign, and
independent State, be admitted to a representation in the
union."
In 1786, a general ordinance was passed for the regulation of
Indian affairs under the authority of the ninth article of the
confederation which throws much light on our relations with them.
P. 614. It closes with a direction that, in all cases where
transactions with any Nation or tribe of Indians shall become
necessary for the purposes of the ordinance which cannot be done
without interfering with the legislative rights of a State, the
superintendent within whose district the same shall happen shall
act in conjunction with the authority of such State.
After accepting the cessions of the soil and jurisdiction of the
western territory and resolving to form a temporary government and
create new, free, sovereign, and independent States, Congress
resolved, in March, 1785, to hold a treaty with the western
Indians. They gave instructions to the commissioners in strict
conformity with their preceding resolutions, both of which were
wholly incompatible with the national or sovereign character of the
Indians with whom they were about to treat. They will be formed in
pages 611, &c. and need not be particularized.
I now proceed to the instructions which preceded the treaty of
Hopewell with the complainants, the treaty, and the consequent
proceedings of Congress. On the 15th March 1785, commissioners were
appointed to treat with the Cherokees and other Indians southward
of them, within the limits of the United States, or who have been
at war with them, for the purpose of making peace with them, and of
receiving them into the favour and protection of the United States,
&c. They were instructed to demand that all prisoners, negroes
and other property taken during the war be given up; to inform the
Indians of the great occurrences of the last war; of the extent of
country relinquished by the late treaty of peace with Great
Britain; to give notice to the Governors of Virginia, North and
South Carolina and Georgia that they may attend if they think
proper; and were authorized to expend four thousand dollars in
making presents to the Indians -- a matter well understood in
making Indian treaties, but unknown at least in our treaties with
foreign nations, princes
Page 30 U. S. 38
or States, unless on the Barbary Coast. A treaty was accordingly
made in November following between the commissioners
plenipotentiaries of the United States, of the one part, and the
headmen and warriors of all the Cherokees, of the other. The word
nation is not used in the preamble or any part of the treaty, so
that we are left to infer the capacity in which the Cherokees
contracted, whether as an independent nation or foreign state or a
tribe of Indians, from the terms of the treaty, its stipulations
and conditions. "The Indians, for themselves and their respective
tribes and towns, do acknowledge all the Cherokees to be under the
protection of the United States." Article 3d, 1 Laws U.S. 322.
"The boundary allotted to the Cherokees for their hunting
grounds between the said Indians and the citizens of the United
States, within the limits of the United States, is and shall be the
following,"
viz. (as defined in Article 4th).
"For the benefit and comfort of the Indians, and for the
prevention of injuries and aggressions 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 in such manner as they shall think
proper."
Article 9.
"That the Indians may have full confidence in the justice of the
United States respecting their interests, they shall have the right
to send a deputy of their choice whenever they think fit to
Congress."
Article 12th.
This treaty is in the beginning called "Article;" the word
"treaty" is only to be found in the concluding line, where it is
called "this definitive treaty." But article or treaty, its nature
does not depend upon the name given it. It is not negotiated
between ministers on both sides representing their nations; the
stipulations are wholly inconsistent with sovereignty; the Indians
acknowledge their dependent character, hold the lands they occupy
as an allotment of hunting grounds; give to Congress the exclusive
right of regulating their trade and managing all their affairs as
they may think proper. So it was understood by Congress as declared
by them in their proclamation of 1st September, 1788 (1 Laws U.S.
619), and so understood at the adoption of the Constitution.
Page 30 U. S. 39
The meaning of the words "deputy to Congress" in the twelfth
article may be as a person having a right to sit in that body, as
at that time it was composed of delegates or deputies from the
States, not as at present, representatives of the people of the
States; or it may be as an agent or minister. But if the former was
the meaning of the parties, it is conclusive to show that he was
not and could not be the deputy of a foreign state wholly separated
from the union. If he sat in Congress as a deputy from any State,
it must be one having a political connection with, and within the
jurisdiction of the confederacy; if as a diplomatic agent, he could
not represent an independent or sovereign nation, for all such have
an unquestioned right to send such agents when and where they
please. The securing the right by an express stipulation of the
treaty, the declared objects in conferring the right, especially
when connected with the ninth article, show beyond a doubt it was
not to represent a foreign state or nation or one to whom the least
vestige of independence or sovereignty as to the United States
appertained. There can be no dependence so anti-national, or so
utterly subversive of national existence, as transferring to a
foreign government the regulation of its trade and the management
of all their affairs at their pleasure. The nation or State, tribe
or village, headmen or warriors of the Cherokees, call them by what
name we please, call the articles they have signed a definitive
treaty or an indenture of servitude; they are not by its force or
virtue a foreign state capable of calling into legitimate action
the judicial power of this union, by the exercise of the original
jurisdiction of this Court against a sovereign State, a component
part of this nation. Unless the Constitution has imparted to the
Cherokees a national character never recognized under the
confederation; and which, if they ever enjoyed, was surrendered by
the treaty of Hopewell, they cannot be deemed in this Court
plaintiffs in such a case as this.
In considering the bearing of the Constitution on their rights,
it must be borne in mind that a majority of the States represented
in the convention had ceded to the United States the soil and
jurisdiction of their western lands, or claimed it to be remaining
in themselves; that Congress asserted as to the ceded, and the
States as to the unceded territory, their right to the soil
absolutely and the dominion in full sovereignty,
Page 30 U. S. 40
within their respective limits, subject only to Indian
occupancy, not as foreign states or nations, but as dependent on
and appendant to the State governments; that, before the convention
acted, Congress had erected a government in the Northwestern
Territory containing numerous and powerful nations or tribes of
Indians whose jurisdiction was continued and whose sovereignty was
overturned, if it ever existed, except by permission of the States
or Congress, by ordaining that the territorial laws should extend
over the whole district, and directing divisions for the execution
of civil and criminal process in every part; that the Cherokees
were then dependants, having given up all their affairs to the
regulation and management of Congress, and that all the regulations
of Congress over Indian affairs were then in force over an immense
territory, under a solemn pledge to the inhabitants that whenever
their population and circumstances would admit, they should form
constitutions and become free, sovereign and independent States on
equal footing with the old component members of the confederation;
that, by the existing regulations and treaties, the Indian tenure
to their lands was their allotment as hunting grounds, without the
power of alienation, that the right of occupancy was not
individual; that the Indians were forbidden all trade or
intercourse with any person not licensed or at a post not
designated by regulation; that Indian affairs formed no part of the
foreign concerns of the government; and that, though they were
permitted to regulate their internal affairs in their own way, it
was not by any inherent right acknowledged by Congress or reserved
by treaty, but because Congress did not think proper to exercise
the sole and exclusive right, declared and asserted in all their
regulations from 1775 to 1788, in the Articles of Confederation, in
the Ordinance of 1787 and the Proclamation of 1788, which the
plaintiffs solemnly recognized and expressly granted by the treaty
of Hopewell in 1785 as conferred on Congress to be exercised as
they should think proper.
To correctly understand the Constitution, then, we must read it
with reference to this well known existing State of our relations
with the Indians -- the United States asserting the right of soil,
sovereignty, and jurisdiction, in full dominion, the Indians
occupant of allotted hunting grounds.
We can thus expound the Constitution without a reference
Page 30 U. S. 41
to the definitions of a State or nation by any foreign writer,
hypothetical reasoning, or the dissertations of the Federalist.
This would be to substitute individual authority in place of the
declared will of the sovereign power of the union in a written
fundamental law. Whether it is the emanation from the people or the
States is a moot question, having no bearing on the supremacy of
that supreme law which, from a proper source, has rightfully been
imposed on us by sovereign power. Where its terms are plain, I
should, as a dissenting judge, deem it judicial sacrilege to put my
hands on any of its provisions and arrange or construe them
according to any fancied use, object, purpose, or motive which, by
an ingenious train of reasoning, I might bring my mind to believe
was the reason for its adoption by the sovereign power, from whose
hands it comes to me as the rule and guide to my faith, my reason,
and judicial oath. In taking out, putting in, or varying the plain
meaning of a word or expression to meet the results of my poor
judgment as to the meaning and intention of the great charter,
which alone imparts to me my power to act as a judge of its supreme
injunctions, I should feel myself acting upon it by judicial
amendments, and not as one of its executors. I will not add unto
these things; I will not take away from the words of this book of
prophecy; I will not impair the force or obligation of its
enactments, plain and unqualified in its terms, by resorting to the
authority of names, the decisions of foreign courts, or a reference
to books or writers. The plain ordinances are a safe guide to my
judgment. When they admit of doubt, I will connect the words with
the practice, usages, and settled principles of this Government, as
administered by its fathers before the adoption of the
Constitution, and refer to the received opinion and fixed
understanding of the high parties who adopted it, the usage and
practice of the new government acting under its authority, and the
solemn decisions of this Court, acting under its high powers and
responsibility, nothing fearing that, in so doing, I can discover
some sound and safe maxims of American policy and jurisprudence,
which will always afford me light enough to decide on the
constitutional powers of the federal and State governments and all
tribunals acting under their authority. They will at least enable
me to judge of the true meaning and
Page 30 U. S. 42
spirit of plain words, put into the forms of constitutional
provisions, which this Court in the great case of
Sturges and
Crowninshield say
"is to be collected chiefly from its words. It would be
dangerous in the extreme to infer from extrinsic circumstances that
a case for which the words of an instrument expressly provide shall
be exempted from its operation. Where words conflict with each
other, where the different clauses of an instrument bear upon each
other and would be inconsistent unless the natural and common
import of words be varied, construction becomes necessary, and a
departure from the obvious meaning of words is justifiable."
But the absurdity and injustice of applying the provision to the
case must be so monstrous that all mankind would without hesitation
unite in rejecting the application.
17 U. S. 4
Wheat. 202,
17 U. S.
203.
In another great case,
Cohens v. Virginia, this Court
say,
"the jurisdiction of this Court then, being extended by the
letter of the Constitution to all cases arising under it or under
the laws of the United States, it follows that those who would
withdraw any case of this description from that jurisdiction must
sustain the exemption they claim on the spirit and true meaning of
the Constitution, which spirit and true meaning must be so apparent
as to overrule the words which its framers have employed."
19 U. S. 6
Wheat. 379,
19 U. S.
380.
The principle of these cases is my guide in this. Sitting here,
I shall always bow to such authority, and require no admonition to
be influenced by no other in a case where I am called on to take a
part in the exercise of the judicial power over a sovereign
State.
Guided by these principles, I come to consider the third clause
of the second section of the first article of the Constitution,
which provides for the apportionment of representatives, and direct
taxes "among the several States which may be included within this
union according to their respective numbers, excluding Indians not
taxed." This clause embraces not only the old, but the new, States
to be formed out of the territory of the United States, pursuant to
the resolutions and ordinances of the old Congress, and the
conditions of the cession from the States, or which might arise by
the division of the old. If the clause excluding Indians not taxed
had not been inserted, or should be stricken out, the whole free
Indian
Page 30 U. S. 43
population of all the States would be included in the federal
numbers, coextensively with the boundaries of all the States
included in this union. The insertion of this clause conveys a
clear definite declaration that there were no independent sovereign
nations or States, foreign or domestic, within their boundaries
which should exclude them from the federal enumeration, or any
bodies or communities within the States excluded from the action of
the federal Constitution unless by the use of express words of
exclusion.
The delegates who represented the States in the convention well
knew the existing relations between the United States and the
Indians, and put the Constitution in a shape for adoption
calculated to meet them; and the words used in this clause exclude
the existence of the plaintiffs as a sovereign or foreign state or
nation, within the meaning of this section, too plainly to require
illustration or argument.
The third clause of the eighth article shows most distinctly the
sense of the convention in authorising Congress to regulate
commerce with the Indian tribes. The character of the Indian
communities had been settled by many years of uniform usage under
the old government, characterized by the name of nations, towns,
villages, tribes, headmen and warriors, as the writers of
resolutions or treaties might fancy, governed by no settled rule,
and applying the word Nation to the Catawbas as well as the
Cherokees. The framers of the Constitution have thought proper to
define their meaning to be that they were not foreign nations nor
States of the union, but Indian tribes, thus declaring the sense in
which they should be considered under the Constitution, which
refers to them as tribes only, in this clause. I cannot strike
these words from the book, or construe Indian tribes in this part
of the Constitution to mean a sovereign State under the first
clause of the second section of the third article. It would be
taking very great liberty in the exposition of a fundamental law to
bring the Indians under the action of the legislative power as
tribes, and of the judicial as foreign states. The power conferred
to regulate commerce with the Indian tribes is the same given to
the old Congress by the ninth article of the old confederation, "to
regulate trade with the Indians." The raising the word "trade" to
the dignity of commerce,
Page 30 U. S. 44
regulating it with Indians or Indian tribes, is only a change of
words. Mere phraseology cannot make Indians nations, or Indian
tribes foreign states.
The second clause of the third section of the fourth article of
the Constitution is equally convincing. "The Congress shall have
power to dispose of, and make all needful regulations and rules
respecting the territory of the United States." What that territory
was, the rights of soil, jurisdiction, and sovereignty claimed and
exercised by the States and the old Congress, has been already
seen. It extended to the formation of a government whose laws and
process were in force within its whole extent, without a saving of
Indian jurisdiction. It is the same power which was delegated to
the old Congress, and, according to the judicial interpretation
given by this Court in
Gibbons v.
Ogden, 9 Wheaton 209, the word "to regulate"
implied in its nature full power over the thing to be regulated; it
excludes, necessarily, the action of all others that would perform
the same operation on the same thing. Applying this construction to
commerce and territory leaves the jurisdiction and sovereignty of
the Indian tribes wholly out of the question. The power given in
this clause is of the most plenary kind. Rules and regulations
respecting the territory of the United States; they necessarily
include complete jurisdiction. It was necessary to confer it
without limitation to enable the new government to redeem the
pledge given by the old in relation to the formation and powers of
the new States. The saving of "the claims" of "any particular
State" is almost a copy of a similar provision, part of the ninth
article of the old confederation, thus delivering over to the new
Congress the power to regulate commerce with the Indian tribes and
regulate the territory they occupied, as the old had done from the
beginning of the revolution.
The only remaining clause of the Constitution to be considered
is the second clause in the sixth article. "All treaties made, or
to be made, shall be the supreme law of the land."
In
Chirac v. Chirac, this Court declared that it was
unnecessary to inquire into the effect of the treaty with France in
1778 under the old confederation, because the confederation had
yielded to our present Constitution, and this treaty had been the
supreme law of the land. 2 Wheaton
15 U. S. 271.
I
Page 30 U. S. 45
consider the same rule as applicable to Indian treaties, whether
considered as national compacts between sovereign powers or as
articles, agreements, contracts or stipulations on the part of this
government, binding and pledging the faith of the Nation to the
faithful observance of its conditions. They secure to the Indians
the enjoyment of the rights they stipulate to give or secure, to
their full extent, and in the plenitude of good faith; but the
treaties must be considered as the rules of reciprocal obligations.
The Indians must have their rights, but must claim them in that
capacity in which they received the grant or guarantee. They
contracted by putting themselves under the protection of the United
States, accepted of an allotment of hunting grounds, surrendered
and delegated to Congress the exclusive regulation of their trade
and the management of all their own affairs, taking no assurance of
their continued sovereignty, if they had any before, but relying on
the assurance of the United States that they might have full
confidence in their justice respecting their interests, stipulating
only for the right of sending a deputy of their own choice to
Congress. If, then, the Indians claim admission to this Court under
the treaty of Hopewell, they cannot be admitted as foreign states,
and can be received in no other capacity.
The legislation of Congress under the Constitution in relation
to the Indians has been in the same spirit, and guided by the same
principles, which prevailed in the old Congress and under the old
confederation. In order to give full effect to the Ordinance of
1787, in the Northwest Territory, it was adapted to the present
Constitution of the United States in 1789, 2 Laws U.S. 33; applied
as the rule for its government to the territory south of the Ohio
in 1790, except the sixth article, 2 Laws U.S. 104; to the
Mississippi territory in 1798, 3 Laws U.S. 39, 40, and, with no
exception, to Indiana in 1800, 3 Laws U.S. 367; to Michigan in
1805, 3 Laws U.S. 632; to Illinois in 1809, 4 Laws U.S. 198.
In 1802, Congress passed the act regulating trade and
intercourse with the Indian tribes in which they assert all the
rights exercised over them under the old confederation, and do not
alter in any degree their political relations, 3 Laws U.S. 460,
et seq. In the same year, Georgia ceded her lands west of
her present boundary to the United States, and, by the
Page 30 U. S. 46
second article of the convention, the United States ceded to
Georgia whatever claim, right or title they may have to the
jurisdiction or soil of any lands south of Tennessee, North or
South Carolina, and east of the line of the cession by Georgia. So
that Georgia now has all the rights attached to her by her
sovereignty within her limits, and which are saved to her by the
second section of the fourth article of the Constitution, and all
the United States could cede either by their power over the
territory or their treaties with the Cherokees.
The treaty with the Cherokees, made at Holston in 1791, contains
only one article which has a bearing on the political relations of
the contracting parties. In the second article, the Cherokees
stipulate "that the said Cherokee Nation will not hold any treaty
with any foreign power, individual State, or with individuals of
any State." 1 Laws U.S. 326. This affords an instructive definition
of the words nation and treaty. At the treaty of Hopewell, the
Cherokees, though subdued and suing for peace, before divesting
themselves of any of the rights or attributes of sovereignty which
this government ever recognized them as possessing by the
consummation of the treaty, contracted in the name of the headmen
and warriors of all the Cherokees; but at Holston in 1791, in
abandoning their last remnant of political right, contracted as the
Cherokee Nation, thus ascending in title as they descended in
power, and applying the word treaty to a contract with an
individual, this consideration will divest words of their
magic.
In thus testing the rights of the complainants as to their
national character by the old confederation, resolutions and
ordinances of the old Congress, the provisions of the Constitution,
treaties held under the authority of both, and the subsequent
legislation thereon, I have followed the rule laid down for my
guide by this Court, in
Foster v.
Elam, 2 Peters, 307, in doing it according to the
principles established by the political department of the
Government.
"If the course of the nation has been a plain one, its courts
would hesitate to pronounce it erroneous. However individual judges
may construe them [treaties], it is the province of the Court to
conform its decisions to the will of the Legislature, if that will
has been clearly expressed."
That the existence of foreign states cannot be known to this
Court judicially except by some
Page 30 U. S. 47
act or recognition of the other departments of this government
is, I think, fully established in the case of
Palmer, 3
Wheaton 634,
16 U. S. 635;
The Pastora,
4 Wheaton 63; and
The Anna, 6
Wheaton 193.
I shall resort to the same high authority as the basis of my
opinion on the powers of the State governments.
"By the revolution, the duties as well as the powers of
government devolved on the people of [Georgia] New Hampshire. It is
admitted that among the latter were comprehended the transcendent
powers of Parliament, as well as those of the executive
department."
Dartmouth College v.
Woodward, 4 Wheat. 451,
17 U. S. 454
Wheat. 192;
Green v.
Biddle, 8 Wheat. 98;
Ogden
v. Saunders, 12 Wheat. 254, &c.
"The same principle applies, though with no greater force, to
the different States of America; for though they form a
confederated government, yet the several States retain their
individual sovereignties, and, with respect to their municipal
regulations, are to each other foreign."
Buckner v.
Findley, 2 Peters 591. The powers of government
which thus devolved on Georgia by the revolution over her whole
territory are unimpaired by any surrender of her territorial
jurisdiction by the old Confederation or the new Constitution, as
there was in both an express saving, as well as by the tenth
article of amendments.
But if any passed to the United States by either, they were
retroceded by the convention of 1802. Her jurisdiction over the
territory in question is as supreme as that of Congress over what
the Nation has acquired by cession from the States or treaties with
foreign powers, combining the rights of the State and general
government. Within her boundaries, there can be no other nation,
community, or sovereign power which this department can judicially
recognize as a foreign state, capable of demanding or claiming our
interposition so as to enable them to exercise a jurisdiction
incompatible with a sovereignty in Georgia, which has been
recognized by the Constitution and every department of this
Government acting under its authority. Foreign States cannot be
created by judicial construction; Indian sovereignty cannot be
roused from its long slumber, and awakened to action by our fiat. I
find no acknowledgement of it by the legislative or executive
power.
Page 30 U. S. 48
Till they have done so, I can stretch forth no arm for their
relief without violating the Constitution. I say this with great
deference to those from whom I dissent; but my judgment tells me I
have no power to act, and imperious duty compels me to stop at the
portal unless I can find some authority in the judgments of this
Court to which I may surrender my own.
Indians have rights of occupancy to their lands as sacred as the
fee simple, absolute title of the whites, but they are only rights
of occupancy, incapable of alienation, or being held by any other
than common right without permission from the Government.
21 U. S. 8
Wheaton 592. In
Fletcher v. Peck, this Court decided that
the Indian occupancy was not absolutely repugnant to a seisin in
fee in Georgia, that she had good right to grant land so occupied,
that it was within the State, and could be held by purchasers under
a law subject only to extinguishment of the Indian title.
10 U. S. 6 Cranch
88,
10 U. S. 142.
13 U. S. 9 Cranch
11. In the case of
Johnson v.
M'Intosh, 8 Wheaton 543,
21 U. S. 571,
the nature of the Indian title to land on this continent,
throughout its whole extent, was most ably and elaborately
considered, leading to conclusions satisfactory to every jurist,
clearly establishing that, from the time of discovery under the
royal government, the colonies, the States, the Confederacy and
this Union, their tenure was the same occupancy, their rights
occupancy and nothing more; that the ultimate absolute fee,
jurisdiction and sovereignty was in the government, subject only to
such rights; that grants vested soil and dominion, and the powers
of government, whether the land granted was vacant or occupied by
Indians.
By the treaty of peace, the powers of government and the rights
of soil which had previously been in Great Britain passed
definitively to these States.
21 U. S. 8
Wheat. 584. They asserted these rights, and ceded soil and
jurisdiction to the United States. The Indians were considered as
tribes of fierce savages -- a people with whom it was impossible to
mix and who could not be governed as a distinct society. They are
not named or referred to in any part of the opinion of the Court as
nations or States, and nowhere declared to have any national
capacity or attributes of sovereignty in their
Page 30 U. S. 49
relations to the General or State governments. The principles
established in this case have been supposed to apply to the rights
which the nations of Europe claimed to acquire by discovery, as
only relative between themselves, and that they did not assume
thereby any rights of soil or jurisdiction over the territory in
the actual occupation of the Indians. But the language of the Court
is too explicit to be misunderstood.
"This principle was that discovery 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."
Those relations which were to subsist between the discoverer and
the natives were to be regulated by themselves. The rights thus
acquired being exclusive, no other power could interpose between
them.
While the different nations of Europe respected the rights of
the natives as occupants, they asserted the ultimate dominion to be
in themselves; and claimed and exercised as a consequence of this
ultimate dominion, a power to grant the soil while yet in the
possession of the natives. These grants have been understood by all
to convey a title to the grantees subject only to the Indian rights
of occupancy. The history of America from its discovery to the
present day proves, we think, the universal recognition of these
principles.
21 U. S. 8
Wheat. 574.
I feel it my duty to apply them to this case. They are in
perfect accordance with those on which the Governments of the
United and individual States have acted in all their changes; they
were asserted and maintained by the Colonies before they assumed
independence. While dependent themselves on the Crown, they
exercised all the rights of dominion and sovereignty over the
territory occupied by the Indians, and this is the first assertion
by them of rights as a foreign state within the limits of a State.
If their jurisdiction within their boundaries has been unquestioned
until this controversy, if rights have been exercised which are
directly repugnant to those now claimed, the judicial power cannot
divest the States of rights of sovereignty and transfer them to the
Indians by decreeing them to be a nation, or foreign state,
preexisting and with rightful jurisdiction and sovereignty over the
territory they occupy. This would reverse every principle on which
our Government have acted for fifty-five years and force, by
Page 30 U. S. 50
mere judicial power, upon the other departments of this
Government and the States of this Union the recognition of the
existence of nations and States within the limits of both,
possessing dominion and jurisdiction paramount to the Federal and
State Constitutions. It will be a declaration, in my deliberate
judgment, that the sovereign power of the people of the United
States and Union must hereafter remain incapable of action over
territory to which their rights in full dominion have been asserted
with the most rigorous authority, and bow to a jurisdiction
hitherto unknown, unacknowledged by any department of the
government, denied by all through all time, unclaimed till now, and
now declared to have been called into exercise not by any change in
our Constitution, the laws of the Union or the States, but
preexistent and paramount over the supreme law of the land.
I disclaim the assumption of a judicial power so awfully
responsible. No assurance or certainty of support in public opinion
can induce me to disregard a law so supreme, so plain to my
judgment and reason. Those who have brought public opinion to bear
on this subject act under a mere moral responsibility -- under no
oath which binds their movements to the straight and narrow line
drawn by the Constitution. Politics or philanthropy may impel them
to pass it, but when their objects can be effectuated only by this
Court, they must not expect its members to diverge from it when
they cannot conscientiously take the first step without breaking
all the high obligations under which they administer the judicial
power of the Constitution. The account of my executorship cannot be
settled before the Court of public opinion, or any human tribunal.
None can release the balance which will accrue by the violation of
my solemn conviction of duty.
Mr. Justice THOMPSON, dissenting.
Entertaining different views of the questions now before us in
this case, and having arrived at a conclusion different from that
of a majority of the Court, and considering the importance of the
case and the constitutional principle involved in it, I shall
proceed, with all due respect for the opinion of others, to assign
the reasons upon which my own has been formed.
In the opinion pronounced by the Court, the merits of the
Page 30 U. S. 51
controversy between the State of Georgia and the Cherokee
Indians have not been taken into consideration. The denial of the
application for an injunction has been placed solely on the ground
of want of jurisdiction in this Court to grant the relief prayed
for. It became, therefore, unnecessary to inquire into the merits
of the case. But thinking as I do that the Court has jurisdiction
of the case, and may grant relief, at least in part, it may become
necessary for me, in the course of my opinion, to glance at the
merits of the controversy, which I shall, however, do very briefly,
as it is important so far as relates to the present
application.
Before entering upon the examination of the particular points
which have been made and argued, and for the purpose of guarding
against any erroneous conclusions, it is proper that I should state
that I do not claim for this Court the exercise of jurisdiction
upon any matter properly falling under the denomination of
political power. Relief to the full extent prayed by the bill may
be beyond the reach of this Court. Much of the matter therein
contained by way of complaint would seem to depend for relief upon
the exercise of political power, and, as such, appropriately
devolving upon the executive, and not the judicial department of
the government. This Court can grant relief so far only as the
rights of person or property are drawn in question, and have been
infringed.
It would very ill become the judicial station which I hold to
indulge in any remarks upon the hardship of the case, or the great
justice that would seem to have been done to the complainants
according to the Statement in the bill, and which, for the purpose
of the present motion I must assume to be true. If they are
entitled to other than judicial relief, it cannot be admitted that,
in a Government like ours, redress is not to be had in some of its
departments, and the responsibility for its denial must rest upon
those who have the power to grant it. But believing as I do that
relief to some extent falls properly under judicial cognizance, I
shall proceed to the examination of the case under the following
heads.
1. Is the Cherokee Nation of Indians a competent party to sue in
this Court?
Page 30 U. S. 52
2. Is a sufficient case made out in the bill to warrant this
Court in granting any relief?
3. Is an injunction the fit and appropriate relief?
1. By the Constitution of the United States it is declared (Art.
3, ยง 2), that the judicial power shall extend to all cases in law
and equity, arising under this Constitution, the laws of the United
States, and treaties made or which shall be made under their
authority; &c. to controversies between two or more States,
&c. and between a State or the citizens thereof and foreign
states, citizens or subjects.
The controversy in the present case is alleged to be between a
foreign state and one of the States of the union, and does not,
therefore, come within the Eleventh Amendment of the Constitution,
which declares that the judicial power of the United States shall
not be construed to extend to any suit in law or equity commenced
or prosecuted against one of the United States by citizens of
another State, or by citizens or subjects of any foreign state.
This amendment does not, therefore, extend to suits prosecuted
against one of the United States by a foreign state. The
Constitution further provides that, in all cases where a State
shall be a party, the Supreme Court shall have original
jurisdiction. Under these provisions in the Constitution, the
complainants have filed their bill in this Court, in the character
of a foreign state, against the State of Georgia; praying an
injunction to restrain that State from committing various alleged
violations of the property of the Nation, claimed under the laws of
the United States, and treaties made with the Cherokee Nation.
That a State of this union may be sued by a foreign state when a
proper case exists and is presented is too plainly and expressly
declared in the Constitution to admit of doubt; and the first
inquiry is whether the Cherokee Nation is a foreign state within
the sense and meaning of the Constitution.
The terms "state" and "nation" are used in the law of nations,
as well as in common parlance, as importing the same thing, and
imply a body of men, united together to procure their mutual safety
and advantage by means of their union. Such a society has its
affairs and interests to manage; it deliberates, and takes
resolutions in common, and thus becomes a moral
Page 30 U. S. 53
person, having an understanding and a will peculiar to itself,
and is susceptible of obligations and laws. Vattel 1. Nations being
composed of men naturally free and independent, and who, before the
establishment of civil societies, live together in the state of
nature, nations or sovereign states, are to be considered as so
many free persons, living together in a state of nature. Vattel 2,
ยง 4. Every nation that governs itself, under what form soever,
without any dependence on a foreign power is a sovereign state. Its
rights are naturally the same as those of any other state. Such are
moral persons who live together in a natural society under the law
of nations. It is sufficient if it be really sovereign and
independent -- that is, it must govern itself by its own authority
and laws. We ought, therefore, to reckon in the number of
sovereigns those states that have bound themselves to another more
powerful, although by an unequal alliance. The conditions of these
unequal alliances may be infinitely varied; but whatever they are,
provided the inferior ally reserves to itself the sovereignty or
the right to govern its own body, it ought to be considered an
independent state. Consequently, a weak state, that, in order to
provide for its safety, places itself under the protection of a
more powerful one without stripping itself of the right of
government and sovereignty, does not cease on this account to be
placed among the sovereigns who acknowledge no other power.
Tributary and feudatory states do not thereby cease to be sovereign
and independent states, so long as self-government and sovereign
and independent authority is left in the administration of the
state. Vattel, c. 1, pp. 16, 17.
Testing the character and condition of the Cherokee Indians by
these rules, it is not perceived how it is possible to escape the
conclusion that they form a sovereign state. They have always been
dealt with as such by the Government of the United States, both
before and since the adoption of the present Constitution. They
have been admitted and treated as a people governed solely and
exclusively by their own laws, usages, and customs within their own
territory, claiming and exercising exclusive dominion over the
same, yielding up by treaty, from time to time, portions of their
land, but still claiming absolute sovereignty and self-government
over what remained unsold.
Page 30 U. S. 54
And this has been the light in which they have, until recently,
been considered from the earliest settlement of the country by the
white people. And indeed, I do not understand it is denied by a
majority of the Court that the Cherokee Indians form a sovereign
state according to the doctrine of the law of nations, but that,
although a sovereign state, they are not considered a foreign state
within the meaning of the Constitution.
Whether the Cherokee Indians are to be considered a foreign
state or not is a point on which we cannot expect to discover much
light from the law of nations. We must derive this knowledge
chiefly from the practice of our own government and the light in
which the Nation has been viewed and treated by it.
That numerous tribes of Indians, and among others the Cherokee
Nation, occupied many parts of this country long before the
discovery by Europeans is abundantly established by history, and it
is not denied but that the Cherokee Nation occupied the territory
now claimed by them long before that period. It does not fall
within the scope and object of the present inquiry to go into a
critical examination of the nature and extent of the rights growing
out of such occupancy, or the justice and humanity with which the
Indians have been treated, or their rights respected.
That they are entitled to such occupancy so long as they choose
quietly and peaceably to remain upon the land cannot be questioned.
The circumstance of their original occupancy is here referred to
merely for the purpose of showing that, if these Indian communities
were then, as they certainly were, nations, they must have been
foreign nations to all the world, not having any connexion, or
alliance of any description with any other power on earth. And if
the Cherokees were then a foreign nation, when or how have they
lost that character, and ceased to be a distinct people, and become
incorporated with any other community?
They have never been, by conquest, reduced to the situation of
subjects to any conqueror, and thereby lost their separate national
existence, and the rights of self-government, and become subject to
the laws of the conqueror. Whenever wars have taken place, they
have been followed by regular treaties of peace, containing
stipulations on each side according
Page 30 U. S. 55
to existing circumstances; the Indian Nation always preserving
its distinct and separate national character. And notwithstanding
we do not recognize the right of the Indians to transfer the
absolute title of their lands to any other than ourselves, the
right of occupancy is still admitted to remain in them, accompanied
with the right of self-government according to their own usages and
customs, and with the competency to act in a national capacity
although placed under the protection of the whites, and owing a
qualified subjection so far as is requisite for public safety. But
the principle is universally admitted that this occupancy belongs
to them as matter of right, and not by mere indulgence. They cannot
be disturbed in the enjoyment of it, or deprived of it without
their free consent, or unless a just and necessary war should
sanction their dispossession.
In this view of their situation, there is as full and complete
recognition of their sovereignty, as if they were the absolute
owners of the soil. The progress made in civilization by the
Cherokee Indians cannot surely be considered as in any measure
destroying their national or foreign character so long as they are
permitted to maintain a separate and distinct government; it is
their political condition that constitutes their foreign character,
and in that sense must the term "foreign" be understood as used in
the Constitution. It can have no relation to local, geographical,
or territorial position. It cannot mean a country beyond sea.
Mexico or Canada is certainly to be considered a foreign country in
reference to the United States. It is the political relation in
which one government or country stands to another which constitutes
it foreign to the other. The Cherokee territory being within the
chartered limits of Georgia does not affect the question. When
Georgia is spoken of as a State, reference is had to its political
character, and not be boundary, and it is not perceived that any
absurdity or inconsistency grows out of the circumstance that the
jurisdiction and territory of the State of Georgia surround or
extend on every side of the Cherokee territory. It may be
inconvenient to the State, and very desirable that the Cherokees
should be removed, but it does not at all affect the political
relation between Georgia and those Indians. Suppose the
Page 30 U. S. 56
Cherokee territory had been occupied by Spaniards or any other
civilized people, instead of Indians, and they had from time to
time ceded to the United States portions of their lands precisely
in the same manner as the Indians have done, and in like manner
retained and occupied the part now held by the Cherokees, and
having a regular government established there; would it not only be
considered a separate and distinct nation or state, but a foreign
nation, with reference to the State of Georgia or the United
States. If we look to lexicographers, as well as approved writers,
for the use of the term "foreign," it may be applied with the
strictest propriety to the Cherokee Nation.
In a general sense, it is applied to any person or thing
belonging to another nation or country. We call an alien a
foreigner because he is not of the country in which we reside. In a
political sense, we call every country foreign which is not within
the jurisdiction of the same government. In this sense, Scotland
before the union was foreign to England; and Canada and Mexico
foreign to the United States. In the United States, all
transatlantic countries are foreign to us. But this is not the only
sense in which it is used.
It is applied with equal propriety to an adjacent territory as
to one more remote. Canada or Mexico is as much foreign to us as
England or Spain. And it may be laid down as a general rule that,
when used in relation to countries in a political sense, it refers
to the jurisdiction or government of the country. In a commercial
sense, we call all goods coming from any country not within our own
jurisdiction foreign goods.
In the diplomatic use of the term, we call every minister a
foreign minister who comes from another jurisdiction or government.
And this is the sense in which it is judicially used by this Court,
even as between the different States of this union. In the case of
Buckner v.
Finlay, 2 Peters 590, it was held that a bill of
exchange drawn in one State of the union on a person living in
another State was a foreign bill, and to be treated as such in the
courts of the United States. The Court says that, in applying the
definition of a foreign bill to the political character of the
several States of this Union in relation to each other, we are all
clearly of opinion
Page 30 U. S. 57
that bills drawn in one of these States upon persons living in
another of them partake of the character of foreign bills, and
ought to be so treated. That, for all national purposes embraced by
the federal Constitution, the States and the citizens thereof are
one, united under the same sovereign authority and governed by the
same laws. In all other respects, the States are necessarily
foreign to, and independent of, each other, their Constitutions and
forms of government being, although republican, altogether
different, as are their laws and institutions. So, in the case of
Warder v. Arrell, decided in the Court of Appeals of
Virginia, 2 Wash. 298, the Court, in speaking of foreign contracts
and saying that the laws of the foreign country where the contract
was made must govern, add the same principle applies, though with
no greater force, to the different States of America, for though
they form a confederated government, yet the several States retain
their individual sovereignties and, with respect to their municipal
regulations, are to each other foreign.
It is manifest from these cases that a foreign state, judicially
considered, consists in its being under a different jurisdiction or
government, without any reference to its territorial position. This
is the marked distinction, particularly in the case of
Buckner
v. Finlay. So far as these States are subject to the laws of
the Union, they are not foreign to each other. But so far as they
are subject to their own respective State laws and government, they
are foreign to each other. And if, as here decided, a separate and
distinct jurisdiction or government is the test by which to decide
whether a nation be foreign or not, I am unable to perceive any
sound and substantial reason why the Cherokee Nation should not be
so considered. It is governed by its own laws, usages and customs;
it has no connexion with any other government or jurisdiction,
except by way of treaties entered into with like form and ceremony
as with other foreign nations. And this seems to be the view taken
of them by Mr Justice Johnson in the case of
Fletcher v.
Peck, 6 Cranch 146; 2 Peters' Condens. Rep.
308.
In speaking of the State and condition of the different Indian
nations, he observes
"that some have totally extinguished their national fire, and
submitted themselves to the laws of the States; others have by
treaty acknowledged that they hold
Page 30 U. S. 58
their national existence at the will of the State within which
they reside; others retain a limited sovereignty and the absolute
proprietorship of their soil. The latter is the case of the tribes
to the west of Georgia, among which are the Cherokees. We legislate
upon the conduct of strangers or citizens within their limits, but
innumerable treaties formed with them acknowledge them to be an
independent people, and the uniform practice of acknowledging their
right of soil by purchasing from them, and restraining all persons
from encroaching upon their territory, makes it unnecessary to
insist upon their rights of soil."
Although there are many cases in which one of these United
States has been sued by another, I am not aware of any instance in
which one of the United States has been sued by a foreign state.
But no doubt can be entertained that such an action might be
sustained upon a proper case being presented. It is expressly
provided for in the Constitution, and this provision is certainly
not to be rejected as entirely nugatory.
Suppose a State, with the consent of Congress, should enter into
an agreement with a foreign power (as might undoubtedly be done,
Constitution, Art. 1, ยง 10) for a loan of money; would not an
action be sustained in this Court to enforce payment thereof? Or
suppose the State of Georgia, with the consent of Congress, should
purchase the right of the Cherokee Indians to this territory, and
enter into a contract for the payment of the purchase money; could
there be a doubt that an action could be sustained upon such a
contract? No objection would certainly be made for want of
competency in that Nation to make a valid contract. The numerous
treaties entered into with the Nation would be a conclusive answer
to any such objection. And if an action could be sustained in such
case, it must be under that provision in the Constitution which
gives jurisdiction to this Court in controversies between a State
and a foreign state. For the Cherokee Nation is certainly not one
of the United States.
And what possible objection can lie to the right of the
complainants to sustain an action? The treaties made with this
Nation purport to secure to it certain rights. These are not
gratuitous obligations assumed on the part of the United States.
They are obligations founded upon a consideration paid by the
Page 30 U. S. 59
Indians by cession of part of their territory. And if they, as a
nation, are competent to make a treaty or contract, it would seem
to me to be a strange inconsistency to deny to them the right and
the power to enforce such a contract. And where the right secured
by such treaty forms a proper subject for judicial cognizance, I
can perceive no reason why this Court has not jurisdiction of the
case. The Constitution expressly gives to the Court jurisdiction in
all cases of law and equity arising under treaties made with the
United States. No suit will lie against the United States upon such
treaty, because no possible case can exist where the United States
can be sued. But not so with respect to a State, and if any right
secured by treaty has been violated by a State, in a case proper
for judicial inquiry, no good reason is perceived why an action may
not be sustained for violation of a right secured by treaty, as
well as by contract under any other form. The judiciary is
certainly not the department of the government authorised to
enforce all rights that may be recognized and secured by treaty. In
many instances, these are mere political rights, with which the
judiciary cannot deal. But when the question relates to a mere
right of property, and a proper case can be made between competent
parties; it forms a proper subject for judicial inquiry.
It is a rule which has been repeatedly sanctioned by this Court
that the judicial department is to consider as sovereign and
independent States or nations those powers that are recognized as
such by the executive and legislative departments of the
government, they being more particularly entrusted with our foreign
relations.
8 U. S. 4 Cranch
241, 2 Peters's Cond.Rep. 98;
16 U. S. 3
Wheat. 634;
17 U. S. 4 Wheat.
64.
If we look to the whole course of treatment by this country of
the Indians from the year 1775 to the present day when dealing with
them in their aggregate capacity as nations or tribes and regarding
the mode and manner in which all negotiations have been carried on
and concluded with them, the conclusion appears to me irresistible
that they have been regarded, by the Executive and Legislative
branches of the Government, not only as sovereign and independent,
but as foreign nations or tribes, not within the jurisdiction nor
under the government of the States within which they were located.
This remark is to be
Page 30 U. S. 60
understood, of course, as referring only to such as live
together as a distinct community, under their own laws, usages and
customs, and not to the mere remnant of tribes which are to be
found in many parts of our country, who have become mixed with the
general population of the country, their national character
extinguished and their usages and customs in a great measure
abandoned, self-government surrendered, and who have voluntarily,
or by the force of circumstances which surrounded them, gradually
become subject to the laws of the States within which they are
situated.
Such, however, is not the case with the Cherokee Nation. It
retains its usages and customs and self-government, greatly
improved by the civilization which it has been the policy of the
United States to encourage and foster among them. All negotiations
carried on with the Cherokees and other Indian nations have been by
way of treaty, with all the formality attending the making of
treaties with any foreign power. The journals of Congress, from the
year 1775 down to the adoption of the present Constitution,
abundantly establish this fact. And since that period, such
negotiations have been carried on by the treaty-making power, and
uniformly under the denomination of treaties.
What is a treaty as understood in the law of nations? It is an
agreement or contract between two or more nations or sovereigns,
entered into by agents appointed for that purpose and duly
sanctioned by the supreme power of the respective parties. And
where is the authority, either in the Constitution or in the
practice of the government, for making any distinction between
treaties made with the Indian nations and any other foreign power?
They relate to peace and war, the surrender of prisoners, the
cession of territory, and the various subjects which are usually
embraced in such contracts between sovereign nations.
A recurrence to the various treaties made with the Indian
nations and tribes in different parts of the country will fully
illustrate this view of the relation in which our Government has
considered the Indians as standing. It will be sufficient, however,
to notice a few of the many treaties made with this Cherokee
Nation.
By the treaty of Hopewell of the 28th November 1785,
Page 30 U. S. 61
1 Laws U.S. 322, mutual stipulations are entered into to restore
all prisoners taken by either party, and the Cherokees stipulate to
restore all negroes and all other property taken from the citizens
of the United States, and a boundary line is settled between the
Cherokees, and the citizens of the United States, and this embraced
territory within the chartered limits of Georgia. And, by the sixth
article, it is provided that, if any Indian or person residing
among them, or who shall take refuge in their nation shall commit a
robbery, or murder, or other capital crime on any citizen of the
United States or person under their protection, the nation or tribe
to which such offender may belong shall deliver him up to be
punished according to the ordinances of the United States. What
more explicit recognition of the sovereignty and independence of
this Nation could have been made? It was a direct acknowledgement
that this territory was under a foreign jurisdiction. If it had
been understood that the jurisdiction of the State of Georgia
extended over this territory, no such stipulation would have been
necessary. The process of the Courts of Georgia would have run into
this as well as into any other part of the State. It is a
stipulation analogous to that contained in the treaty of 1794 with
England, 1 Laws U.S. 220, by the twenty-seventh article of which it
is mutually agreed that each party will deliver up to justice all
persons who, being charged with murder or forgery committed within
the jurisdiction of either, shall seek an asylum within any of the
countries of the other. Upon what ground can any distinction be
made as to the reason and necessity of such stipulation in the
respective treaties. The necessity for the stipulation in both
cases must be because the process of one government and
jurisdiction will not run into that of another, and separate and
distinct jurisdiction, as has been shown, is what makes governments
and nations foreign to each other in their political relations.
The same stipulation as to delivering up criminals who shall
take refuge in the Cherokee Nation is contained in the treaty of
Holston of the 2d of July 1791, 1 Laws U.S. 327. And the eleventh
article fully recognizes the jurisdiction of the Cherokee Nation
over the territory occupied by them. It provides that if any
citizen of the United States shall go into
Page 30 U. S. 62
the territory belonging to the Cherokees and commit any crime
upon or trespass against the person or property of any friendly
Indian which, if committed within the jurisdiction of any State,
would be punishable by the laws of such State, shall be subject to
the same punishment, and proceeded against in the same manner, as
if the offence had been committed within the jurisdiction of the
State. Here is an explicit admission that the Cherokee territory is
not within the jurisdiction of any State. If it had been considered
within the jurisdiction of Georgia, such a provision would not only
be unnecessary, but absurd. It is a provision looking to the
punishment of a citizen of the United States for some act done in a
foreign country. If exercising exclusive jurisdiction over a
country is sufficient to constitute the State or power so
exercising it a foreign state, the Cherokee Nation may assuredly
with the greatest propriety be so considered.
The phraseology of the clause in the Constitution giving to
Congress the power to regulate commerce is supposed to afford an
argument against considering the Cherokees a foreign nation. The
clause reads thus, "to regulate commerce with foreign nations, and
among the several States, and with the Indian tribes."
Constitution, Art. 1, ยง 8. The argument is that if the Indian
tribes are foreign nations, they would have been included without
being specially named, and being so named imports something
different from the previous term "foreign nations."
This appears to me to partake too much of a mere verbal
criticism to draw after it the important conclusion that Indian
tribes are not foreign nations. But the clause affords,
irresistibly, the conclusion that the Indian tribes are not there
understood as included within the description of the "several
States;" or there could have been no fitness in immediately
thereafter particularizing "the Indian tribes."
It is generally understood that every separate body of Indians
is divided into bands or tribes, and forms a little community
within the nation to which it belongs; and as the nation has some
particular symbol by which it is distinguished from others, so each
tribe has a badge from which it is denominated, and each tribe may
have rights applicable to itself.
Cases may arise where the trade with a particular tribe may
Page 30 U. S. 63
require to be regulated, and which might not have been embraced
under the general description of the term nation, or it might at
least have left the case somewhat doubtful; as the clause was
intended to vest in Congress the power to regulate all commercial
intercourse, this phraseology was probably adopted to meet all
possible cases, and the provision would have been imperfect if the
term "Indian tribes" had been omitted.
Congress could not then have regulated the trade with any
particular tribe that did not extend to the whole nation. Or it may
be that the term "tribe" is here used as importing the same thing
as that of "nation," and adopted merely to avoid the repetition of
the term nation, and the Indians are specially named because there
was a provision somewhat analogous in the confederation; and
entirely omitting to name the Indian tribes might have afforded
some plausible grounds for concluding that this branch of
commercial intercourse was not subject to the power of
Congress.
On examining the journals of the old congress, which contain
numerous proceedings and resolutions respecting the Indians, the
terms "nation" and "tribe" are frequently used indiscriminately,
and as importing the same thing, and treaties were sometimes
entered into with the Indians, under the description or
denomination of tribes, without naming the nation.
See
Journals 30th June and 12th July 1775; 8th March 1776; 20th October
1777: and numerous other instances.
But whether any of these suggestions will satisfactorily account
for the phraseology here used or not, it appears to me to be of too
doubtful import to outweigh the considerations to which I have
referred to show that the Cherokees are a foreign nation. The
difference between the provision in the Constitution and that in
the Confederation on this subject appears to me to show very
satisfactorily that, so far as related to trade and commerce with
the Indians wherever found in tribes, whether within or without the
limits of a State, was subject to the regulation of Congress.
The provision in the confederation, Art. 9, 1 Laws United States
17, is that Congress shall have the power of 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.
Page 30 U. S. 64
The true import of this provision is certainly not very obvious;
see Federalist, No. 42. What were the legislative rights
intended to be embraced within the proviso is left in great
uncertainty. But whatever difficulty on that subject might have
arisen under the confederation, it is entirely removed by the
omission of the proviso in the present Constitution, thereby
leaving this power entirely with Congress, without regard to any
State right on the subject, and showing that the Indian tribes were
considered as distinct communities, although within the limits of a
State.
The provision, as contained in the confederation, may aid in
illustrating what is to be inferred from some parts of the
Constitution, Art. 1, ยง 1, par. 3, as to the apportionment of
representatives, and acts of Congress in relation to the Indians,
to-wit, that they are divided into two distinct classes, one
composed of those who are considered members of the State within
which they reside and the other not; the former embracing the
remnant of the tribes who had lost their distinctive character as a
separate community and had become subject to the laws of the
States, and the latter such as still retained their original
connexion as tribes, and live together under their own laws, usages
and customs, and, as such, are treated as a community independent
of the State. No very important conclusion, I think, therefore can
be drawn from the use of the term "tribe" in this clause of the
Constitution, intended merely for commercial regulations. If
considered as importing the same thing as the term "nation," it
might have been adopted to avoid the repetition of the word
nation.
Other instances occur in the Constitution where different terms
are used importing the same thing. Thus, in the clause giving
jurisdiction to this Court, the term "foreign states" is used
instead of "foreign nations," as in the clause relating to
commerce. And again, in Art. 1, ยง 10, a still different phraseology
is employed. "No State, without the consent of Congress, shall
enter into any agreement or compact with a foreign power." But each
of these terms, nation, state, power, as used in different parts of
the Constitution, imports the same thing, and does not admit of a
different interpretation. In the treaties made with the Indians,
they are sometimes designated under the name of tribe, and
sometimes that
Page 30 U. S. 65
of nation. In the treaty of 1804 with the Delaware Indians, they
are denominated the "Delaware Tribe of Indians." 1 Laws United
States 305. And in a previous treaty with the same people in the
year 1778, they are designated by the name of "the Delaware
Nation." 1 Laws United States 302.
As this was one of the earliest treaties made with the Indians,
its provisions may serve to show in what light the Indian nations
were viewed by Congress at that day.
The territory of the Delaware Nation was within the limits of
the States of New York, Pennsylvania and New Jersey. Yet we hear of
no claim of jurisdiction set up by those States over these Indians.
This treaty, both in form and substance, purports to be an
arrangement with an independent sovereign power. It even purports
to be articles of confederation. It contains stipulations relative
to peace and war, and for permission to the United States troops to
pass through the country of the Delaware Nation. That neither party
shall protect in their respective States, servants, slaves, or
criminals, fugitives from the other, but secure, and deliver them
up. Trade is regulated between the parties. And the sixth article
shows the early pledge of the United States to protect the Indians
in their possessions against any claims or encroachments of the
States. It recites that, whereas the enemies of the United States
have endeavoured to impress the Indians in general with an opinion
that it is the design of the States to extirpate the Indians and
take possession of their country, to obviate such false
suggestions, 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 has
been bounded by former treaties, &c. And provision is even made
for inviting other tribes to join the confederacy, and to form a
state, and have a representation in Congress, should it be found
conducive to the mutual interest of both parties. All which
provisions are totally inconsistent with the idea of these Indians'
being considered under the jurisdiction of the States, although
their chartered limits might extend over them.
The recital in this treaty contains a declaration and admission
of Congress of the rights of Indians in general, and that the
impression which our enemies were
Page 30 U. S. 66
endeavouring to make, that it was the design of the States to
extirpate them and take their lands, was false. And the same
recognition of their rights runs through all the treaties made with
the Indian nations or tribes from that day down to the present
time.
The twelfth article of the treaty of Hopewell contains a full
recognition of the sovereign and independent character of the
Cherokee Nation. To impress upon them full confidence in the
justice of the United States respecting their interest, they have a
right to send a deputy of their choice to Congress. No one can
suppose that such deputy was to take his seat as a member of
Congress, but that he would be received as the agent of that
nation. It is immaterial what such agent is called, whether
minister, commissioner or deputy; he is to represent his
principal.
There could have been no fitness or propriety in any such
stipulation if the Cherokee Nation had been considered in any way
incorporated with the State of Georgia, or as citizens of that
State. The idea of the Cherokees' being considered citizens is
entirely inconsistent with several of our treaties with them. By
the eighth article of the Treaty of the 26th December, 1817, 6 Laws
U.S. 706, the United States stipulate to give 640 acres of land to
each head of any Indian family residing on the lands now ceded or
which may hereafter be surrendered to the United States who may
wish to become citizens of the United States; so also, the second
article of the treaty with the same nation, of the 10th of March,
1819, contains the same stipulation in favour of the heads of
families who may choose to become citizens of the United States,
thereby clearly showing that they were not considered citizens at
the time those stipulations were entered into, or the provision
would have been entirely unnecessary, if not absurd. And if not
citizens, they must be aliens or foreigners, and such must be the
character of each individual belonging to the nation. And it was,
therefore, very aptly asked on the argument, and I think not very
easily answered, how a Nation composed of aliens or foreigners can
be other than a foreign nation.
The question touching the citizenship of an Oneida Indian came
under the consideration of the Supreme Court of New
Page 30 U. S. 67
York in the case of
Jackson v. Goodel, 20 Johns. 193.
The lessor of the plaintiff was the son of an Oneida Indian who had
received a patent for the lands in question as an officer in the
revolutionary war, and although the Supreme Court, under the
circumstances of the case, decided he was a citizen, yet Chief
Justice Spencer observed, we do not mean to say that the condition
of the Indian tribes (alluding to the six nations), at former and
remote periods, has been that of subjects or citizens of the State;
their condition has been gradually changing, until they have lost
every attribute of sovereignty and become entirely dependent upon
and subject to our government. But the cause being carried up to
the Court of Errors, chancellor Kent, in a very elaborate and able
opinion on that question, came to a different conclusion as to the
citizenship of the Indian, even under the strong circumstances of
that case.
"That Oneidas," he observed, and
"the tribes composing the six nations of Indians were originally
free and independent nations, and it is for the counsel who contend
that they have now ceased to be a distinct people and become
completely incorporated with us to point out the time when that
event took place. In my view, they have never been regarded as
citizens or members of our body politic. They have always been, and
still are, considered by our laws as dependent tribes, governed by
their own usages and chiefs but placed under our protection, and
subject to our coercion so far as the public safety required it,
and no farther. The whites have been gradually pressing upon them,
as they kept receding from the approaches of civilization. We have
purchased the greater part of their lands, destroyed their hunting
grounds, subdued the wilderness around them, overwhelmed them with
our population, and gradually abridged their native independence.
Still they are permitted to exist as distinct nations, and we
continue to treat with their sachems in a national capacity, and as
being the lawful representatives of their tribes. Through the whole
course of our colonial history, these Indians were considered
dependent allies. The colonial authorities uniformly negotiated
with them and made and observed treaties with them as sovereign
communities exercising the right of free deliberation and action,
but, in consideration of protection, owing
Page 30 U. S. 68
a qualified subjection in a national capacity to the British
Crown. No argument can be drawn against the sovereignty of these
Indian nations from the fact of their having put themselves and
their lands under the protection of the British Crown; such a fact
is of frequent occurrence between independent nations. One
community may be bound to another by a very unequal alliance and
still be a sovereign state. Vat. B. 1, ch. 16, ยง 194. The Indians,
though born within our territorial limits, are considered as born
under the dominion of their own tribes. There is nothing in the
proceedings of the United States during the Revolutionary War which
went to impair, and much less to extinguish, the national character
of the six nations and consolidate them with our own people. Every
public document speaks a different language, and admits their
distinct existence and competence as nations, but placed in the
same state of dependence, and calling for the same protection,
which existed before the war. In the treaties made with them, we
have the forms and requisites peculiar to the intercourse between
friendly and independent states, and they are conformable to the
received institutes of the law of nations. What more demonstrable
proof can we require of existing and acknowledged sovereignty."
If this be a just view of the Oneida Indians, the rules and
principles here applied to that Nation may with much greater force
be applied to the character, state, and condition of the Cherokee
Nation of Indians, and we may safely conclude that they are not
citizens, and must, of course, be aliens; and, if aliens in their
individual capacities, it will be difficult to escape the
conclusion that, as a community, they constitute a foreign nation
or state, and thereby become a competent party to maintain an
action in this Court according to the express terms of the
Constitution.
And why should this Court scruple to consider this Nation a
competent party to appear here?
Other departments of the Government, whose right it is to decide
what powers shall be recognized as sovereign and independent
nations, have treated this Nation as such. They have considered it
competent, in its political and national capacity, to enter into
contracts of the most solemn character; and if these contracts
contain matter proper for judicial inquiry,
Page 30 U. S. 69
why should we refuse to entertain jurisdiction of the case? Such
jurisdiction is expressly given to this Court in cases arising
under treaties. If the executive department does not think proper
to enter into treaties or contracts with the Indian nations, no
case with them can arise calling for judicial cognizance. But when
such treaties are found containing stipulations proper for judicial
cognizance, I am unable to discover any reasons satisfying my mind
that this Court has not jurisdiction of the case.
The next inquiry is whether such a case is made out in the bill
as to warrant this Court in granting any relief?
I have endeavoured to show that the Cherokee Nation is a foreign
state, and, as such, a competent party to maintain an original suit
in this Court against one of the United States. The injuries
complained of are violations committed and threatened upon the
property of the complainants, secured to them by the laws and
treaties of the United States. Under the Constitution, the judicial
power of the United States extends expressly to all cases in law
and equity arising under the laws of the United States and treaties
made or which shall be made under the authority of the same.
In the case of
Osborn v. The United
States Bank, 9 Wheat. 819, the Court say that this
clause in the Constitution enables the judicial department to
receive jurisdiction to the full extent of the Constitution, laws,
and treaties of the United States when any question respecting them
shall assume such a form that the judicial power is capable of
acting on it. That power is capable of acting only when the subject
is submitted to it by a party who asserts his rights in the form
presented by law. It then becomes a case, and the Constitution
authorises the application of the judicial power.
The question presented in the present case is, under the
ordinary form of judicial proceedings, to obtain an injunction to
prevent or stay a violation of the rights of property claimed and
held by the complainants under the treaties and laws of the United
States which, it is alleged, have been violated by the State of
Georgia. Both the form and the subject matter of the complaint
therefore fall properly under judicial cognizance.
What the rights of property in the Cherokee Nation are
Page 30 U. S. 70
may be discovered from the several treaties which have been made
between the United States and that Nation between the years 1785
and 1819. It will be unnecessary to notice many of them. They all
recognize in the most unqualified manner a right of property in
this nation to the occupancy, at least, of the lands in question.
It is immaterial whether this interest is a mere right of occupancy
or an absolute right to the soil. The complains is for a violation,
or threatened violation, of the possessory right. And this is a
right, in the enjoyment of which they are entitled to protection
according to the doctrine of this Court in the cases of
Fletcher v.
Peck, 6 Cranch 87, 2 Peters's Cond.Rep. 308, and
Johnson v.
M'Intosh, 8 Wheat. 592. By the fourth article of
the treaty of Hopewell, as early as the year 1785, 1 Laws United
States 323, the boundary line between the Cherokees and the
citizens of the United States within the limits of the United
States is fixed.
The fifth article provides for the removal and punishment of
citizens of the United States or other persons, not being Indians,
who shall attempt to settle on the lands so allotted to the
Indians, thereby not only surrendering the exclusive possession of
these lands to this nation but providing for the protection and
enjoyment of such possession. And it may be remarked in
corroboration of what has been said in a former part of this
opinion that there is here drawn a marked line of distinction
between the Indians and citizens of the United States entirely
excluding the former from the character of citizens.
Again, by the treaty of Holston in 1791, 1 Laws United States
325, the United States purchase a part of the territory of this
nation, and a new boundary line is designated and provision made
for having it ascertained and marked. The mere act of purchasing
and paying a consideration for these lands is a recognition of the
Indian right. In addition to which, the United States, by the
seventh article, solemnly guaranty to the Cherokee Nation all their
lands not ceded by that treaty. And, by the eighth article, it is
declared that any citizens of the United States, who shall settle
upon any of the Cherokee lands, shall forfeit the protection of the
United States, and the Cherokees may punish them or not as they
shall please.
Page 30 U. S. 71
This treaty was made soon after the adoption of the present
Constitution. And, in the last article, it is declared that it
shall take effect and be obligatory upon the contracting parties as
soon as the same shall have been ratified by the President of the
United States, with the advice and consent of the Senate, thereby
showing the early opinion of the government of the character of the
Cherokee Nation. The contract is made by way of treaty, and to be
ratified in the same manner as all other treaties made with
sovereign and independent nations, and which has been the mode of
negotiating in all subsequent Indian treaties.
And this course was adopted by President Washington upon great
consideration, by and with the previous advice and concurrence of
the Senate. In his message sent to the Senate on that occasion, he
states that the White people had intruded on the Indian lands, as
bounded by the treaty of Hopewell, and declares his determination
to execute the power entrusted to him by the Constitution to carry
that treaty into faithful execution unless a new boundary should be
arranged with the Cherokees embracing the intrusive settlements and
compensating the Cherokees therefor. And he puts to the Senate this
question: shall the United States stipulate solemnly to guarantee
the new boundary which shall be arranged? Upon which, the Senate
resolve that, in case a new or other boundary than that stipulated
by the treaty of Hopewell shall be concluded with the Cherokee
Indians, the Senate do advise and consent solemnly to guaranty the
same. 1 Executive Journal 60. In consequence of which the treaty of
Holston was entered into, containing the guarantee.
Further cessions of land have been made at different times by
the Cherokee Nation to the United States for a consideration paid
therefor and, as the treaties declare, in acknowledgement for the
protection of the United States (
see Treaty of 1798, 1
Laws U.S. 332), the United States always recognizing in the fullest
manner the Indian right of possession; and in the Treaty of the 8th
of July, 1817, art. 5 (6 Laws U.S. 702), all former treaties are
declared to be in full force, and the sanction of the United States
is given to the proposition of a portion of the Nation to begin the
establishment of fixed laws and a regular government: thereby
recognizing in the Nation a political existence, capable of forming
an independent
Page 30 U. S. 72
government, separate and distinct from and in no manner whatever
under the jurisdiction of the State of Georgia; and no objection is
known to have been made by that State.
And again, in 1819 (6 Laws U.S. 748), another treaty is made
sanctioning and carrying into effect the measures contemplated by
the treaty of 1817, beginning with a recital that the greater part
of the Cherokees have expressed an earnest desire to remain on this
side of the Mississippi, and being desirous, in order to commence
those measures which they deem necessary to the civilization and
preservation of their nation, that the Treaty between the United
States and them, of the 8th of July, 1817, might without further
delay be finally adjusted, have offered to make a further cession
of land, &c. This cession is accepted, and various stipulations
entered into with a view to their civilization and the
establishment of a regular government, which has since been
accomplished. And, by the fifth article, it is stipulated that all
white people who have intruded or who shall thereafter intrude on
the lands reserved for the Cherokees shall be removed by the United
States and proceeded against according to the provisions of the act
of 1802, entitled "An act to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the frontiers." 3 Laws
U.S. 460. By this act, the boundary lines established by treaty
with the various Indian tribes are required to be ascertained and
marked, and, among others, that with the Cherokee Nation according
to the Treaty of the 2d of October, 1798.
It may be necessary here briefly to notice some of the
provisions of this Act of 1802 so far as it goes to protect the
rights of property in the Indians, for the purpose of seeing
whether there has been any violation of those rights by the State
of Georgia which falls properly under judicial cognizance. By this
Act, it is made an offence punishable by fine and imprisonment for
any citizen or other person resident in the United States, or
either of the territorial districts, to cross over or go within the
boundary line to hunt or destroy the game, or drive stock to range
or feed on the Indian lands, or to go into any country allotted to
the Indians without a passport, or to commit therein any robbery,
larceny, trespass, or other crime against the person or property of
any friendly
Page 30 U. S. 73
Indian, which would be punishable, if committed within the
jurisdiction of any State against a citizen of the United States,
thereby necessarily implying that the Indian territory secured by
treaty was not within the jurisdiction of any State. The Act
further provides that ,when property is taken or destroyed, the
offender shall forfeit and pay twice the value of the property so
taken or destroyed. And, by the fifth section, it is declared that,
if any citizen of the United States or other person shall make a
settlement on any lands belonging or secured or guarantied by
treaty with the United States to any Indian tribe, or shall survey
or attempt to survey such lands or designate any of the boundaries
by marking trees or otherwise, such offender shall forfeit a sum
not exceeding one thousand dollars, and suffer imprisonment not
exceeding twelve months.
This Act contains various other provisions for the purpose of
protecting the Indians in the free and uninterrupted enjoyment of
their lands, and authority is given (ยง 16) to employ the military
force of the United States to apprehend all persons who shall be
found in the Indian country in violation of any of the provisions
of the act, and deliver them up to the civil authority to be
proceeded against in due course of law.
It may not be improper here to notice some diversity of opinion
that has been entertained with respect to the construction of the
nineteenth section of this Act, which declares that nothing therein
contained shall be construed to prevent any trade or intercourse
with the Indians living on lands surrounded by settlements of
citizens of the United States, and being within the ordinary
jurisdiction of any of the individual States. It is understood that
the State of Georgia contends that the Cherokee Nation come within
this section, and are subject to the jurisdiction of that State.
Such a construction makes the Act inconsistent with itself, and
directly repugnant to the various treaties entered into between the
United States and the Cherokee Indians. The Act recognizes and
adopts the boundary line as settled by treaty. And by these
treaties, which are in full force, the United States solemnly
guaranty to the Cherokee Nation all their lands not ceded to the
United States; and these lands lie within the chartered limits of
Georgia; and this was a subsisting guarantee under the
Page 30 U. S. 74
Treaty of 1791, where the Act of 1802 was passed. It would
require the most unequivocal language to authorise a construction
so directly repugnant to these treaties.
But this section admits of a plain and obvious interpretation,
consistent with other parts of the Act, and in harmony with these
treaties. The reference undoubtedly is to that class of Indians
which has already been referred to, consisting of the mere remnants
of tribes which have become almost extinct and who have, in a great
measure, lost their original character and abandoned their usages
and customs and become subject to the laws of the State, although
in many parts of the country living together, and surrounded by the
whites. They cannot be said to have any distinct government of
their own, and are within the ordinary jurisdiction and government
of the State where they are located.
But such was not the condition and character of the Cherokee
Nation, in any respect whatever, in the year 1802 or at any time
since. It was a numerous and distinct nation, living under the
government of their own laws, usages, and customs and in no sense
under the ordinary jurisdiction of the State of Georgia, but under
the protection of the United States, with a solemn guarantee by
treaty of the exclusive right to the possession of their lands.
This guarantee is to the Cherokees in their national capacity.
Their land is held in common, and every invasion of their
possessory right is an injury done to the Nation, and not to any
individual. No private or individual suit could be sustained; the
injury done being to the Nation, the remedy sought must be in the
name of the Nation. All the rights secured to these Indians under
the treaties made with them remain unimpaired. These treaties are
acknowledged by the United States to be in full force by the
proviso to the seventh section of the Act of the 28th May 1830,
which declares that nothing in this Act contained shall be
construed as authorising or directing the violation of any existing
treaty between the United States and any Indian tribes.
That the Cherokee Nation of Indians have, by virtue of these
treaties, an exclusive right of occupancy of the lands in question,
and that the United States are bound under their guarantee to
protect the Nation in the enjoyment of such occupancy,
Page 30 U. S. 75
cannot, in my judgment, admit of a doubt, and that some of the
laws of Georgia set out in the bill are in violation of and in
conflict with those treaties and the Act of 1802 is, to my mind,
equally clear. But a majority of the Court having refused the
injunction, so that no relief whatever can be granted, it would be
a fruitless inquiry for me to go at large into an examination of
the extent to which relief might be granted by this Court,
according to my own view of the case.
I certainly, as before observed, do not claim as belonging to
the Judiciary the exercise of political power. That belongs to
another branch of the Government. The protection and enforcement of
many rights secured by treaties most certainly do not belong to the
Judiciary. It is only where the rights of persons or property are
involved, and when such rights can be presented under some judicial
form of proceedings, that courts of justice can interpose
relief.
This Court can have no right to pronounce an abstract opinion
upon the constitutionality of a State law. Such law must be brought
into actual or threatened operation upon rights properly falling
under judicial cognizance, or a remedy is not to be had here.
The laws of Georgia set out in the bill, if carried fully into
operation, go the length of a abrogating all the laws of the
Cherokees, abolishing their government, and entirely subverting
their national character. Although the whole of these laws may be
in violation of the treaties made with this Nation, it is probable
this Court cannot grant relief to the full extent of the complaint.
Some of them, however, are so directly at variance with these
treaties and the laws of the United States touching the rights of
property secured to them that I can perceive no objection to the
application of judicial relief. The State of Georgia certainly
could not have intended these laws as declarations of hostility, or
wish their execution of them to be viewed in any manner whatever as
acts of war, but merely as an assertion of what is claimed as a
legal right, and in this light ought they to be considered by this
Court.
The Act of the 2d of December, 1830 is entitled
"An act to authorize the Governor to take possession of the gold
and silver and other mines lying and being in that section of the
chartered limits of Georgia, commonly called the Cherokee
country,
Page 30 U. S. 76
and those upon all other unappropriated lands of the State, and
for punishing persons who may be found trespassing on the
mines."
The preamble to this Act asserts the title to these mines to
belong to the State of Georgia, and by its provisions, twenty
thousand dollars are appropriated and placed at the disposal of the
Governor to enable him to take possession of those mines; and it is
made a crime, punishable by imprisonment in the penitentiary of
Georgia at hard labour, for the Cherokee Indians to work these
mines. And the bill alleges that, under the laws of the State in
relation to the mines, the Governor has stationed at the mines an
armed force who are employed in restraining the complainants in
their rights and liberties in regard to their own mines, and in
enforcing the laws of Georgia upon them. These can be considered in
no other light than as acts of trespass, and may be treated as acts
of the State, and not of the individuals employed as the agents.
Whoever authorises or commands an act to be done may be considered
a principal, and held responsible if he can be made a party to a
suit, as the State of Georgia may undoubtedly be. It is not
perceived on what ground the State can claim a right to the
possession and use of these mines. The right of occupancy is
secured to the Cherokees by treaty, and the State has not even a
reversionary interest in the soil. It is true that, by the Compact
with Georgia of 1802, the United States have stipulated to
extinguish, for the use of the State, the Indian title to the lands
within her remaining limits "as soon as it can be done peaceably
and upon reasonable terms." But until this is done, the State can
have no claim to the lands.
The very Compact is a recognition by the State of a subsisting
Indian right, and which may never be extinguished. The United
States have not stipulated to extinguish it until it can be done
"peaceably and upon reasonable terms," and whatever complaints the
State of Georgia may have against the United States for the
nonfulfillment of this compact, it cannot affect the right of the
Cherokees. They have not stipulated to part with that right, and,
until they do, their right to the mines stands upon the same
footing as the use and enjoyment of any other part of the
territory.
Again, by the act of the 21st December, 1830, surveyors
Page 30 U. S. 77
are authorized to be appointed to enter upon the Cherokee
territory and lay it off into districts and sections, which are to
be distributed by lottery among the people of Georgia, reserving to
the Indians only the present occupancy of such improvements as the
individuals of their Nation may now be residing on, with the lots
on which such improvements may stand, and even excepting from such
reservation improvements recently made near the gold mines.
This is not only repugnant to the treaties with the Cherokees,
but directly in violation of the Act of Congress of 1802, the fifth
section of which makes it an offence punishable with fine and
imprisonment to survey or attempt to survey or designate any of the
boundaries, by marking trees or otherwise, of any land belonging to
or secured by treaty to any Indian tribe, in the face of which, the
law of Georgia authorises the entry upon, taking possession of, and
surveying, and distributing by lottery, these lands guarantied by
treaty to the Cherokee Nation, and even gives authority to the
Governor to call out the military force to protect the surveyors in
the discharge of the duty assigned them.
These instances are sufficient to show a direct and palpable
infringement of the rights of property secured to the complainants
by treaty, and in violation of the act of Congress of 1802. These
treaties and this law are declared by the Constitution to be the
supreme law of the land; it follows as matter of course that the
laws of Georgia, so far as they are repugnant to them, must be void
and inoperative. And it remains only very briefly to inquire
whether the execution of them can be restrained by injunction
according to the doctrine and practice of Courts of equity.
According to the view which I have already taken of the case, I
must consider the question of right as settled in favour of the
complainants. This right rests upon the laws of the United States
and treaties made with the Cherokee Nation. The construction of
these laws and treaties are pure questions of law, and for the
decision of the Court. There are no grounds, therefore, upon which
it can be necessary to send the cause for a trial at law of the
right before awarding an injunction, and the simple question is
whether such a case is made out by the bill as to authorize the
granting an injunction.
Page 30 U. S. 78
This is a prohibitory writ, to restrain a party from doing a
wrong or injury to the rights of another. It is a beneficial
process for the protection of rights, and is favourably viewed by
courts of chancery, as its object is to prevent, rather than
redress, injuries, and has latterly been more liberally awarded
than formerly. 7 Ves.Jun. 307.
The bill contains charges of numerous trespasses by entering
upon the lands of the complainants and doing acts greatly to their
injury and prejudice, and to the disturbance of the quiet enjoyment
of their land, and threatening a total destruction of all their
rights. And although it is not according to the course of chancery,
to grant injunctions to prevent trespasses when there is a clear
and adequate remedy at law, yet it will be done when the case is
special and peculiar, and when no adequate remedy can be had at
law, and particularly when the injury threatens irreparable ruin. 6
Ves. 147. 7 Eden 307. Every man is entitled to be protected in the
possession and enjoyment of his property, and the ordinary remedy
by action of trespass may generally be sufficient to afford such
protection. But where, from the peculiar nature and circumstances
of the case, this is not an adequate protection, it is a fit case
to interpose the preventive process of injunction. This is the
principle running through all the case on this subject, and is
founded upon the most wise and just considerations, and this is
peculiarly such a case. The complaint is not of a mere private
trespass, admitting of compensation in damages, but of injuries
which go to the total destruction of the whole right of the
complainants. The mischief threatened is great and irreparable. 7
Johns.Cha. 330. It is one of the most beneficial powers of a Court
of equity to interpose and prevent an injury before any has
actually been suffered, and this is done by a bill which is
sometimes called a bill
quia timet. Mitford 120.
The doctrine of this Court in the case of
Osborne v.
The United States Bank, 9 Wheat. 738, fully
sustains the present application for an injunction. The bill in
that case was filed to obtain an injunction against the auditor of
the State of Ohio to restrain him from executing a law of that
State which was alleged to be to the great injury of the bank, and
to the destruction of rights conferred by their charter. The
only
Page 30 U. S. 79
question of doubt entertained by the Court in that case was as
to issuing an injunction against an officer of the State to
restrain him from doing an official act enjoined by statute, the
State not being made a party. But even this was not deemed
sufficient to deny the injunction. The Court considered that the
Ohio law was made for the avowed purpose of expelling the bank from
the State and depriving it of its chartered privileges, and they
say, if the State could have been made a party defendant, it would
scarcely be denied that it would be a strong case for an
injunction; that the application was not to interpose the writ of
injunction to protect the bank from a common and casual trespass of
an individual, but from a total destruction of its franchise, of
its chartered privileges, so far as respected the State of Ohio. In
that case, the State could not be made a party according to the
Eleventh Amendment of the Constitution, the complainants being mere
individuals, and not a sovereign State. But, according to my view
of the present case, the State of Georgia is properly made a party
defendant, the complainants being a foreign state.
The laws of the State of Georgia in this case go as fully to the
total destruction of the complainants' rights as did the law of
Ohio to the destruction of the rights of the bank in that State,
and an injunction is as fit and proper in this case to prevent the
injury as it was in that.
It forms no objection to the issuing of the injunction in this
case that the lands in question do not lie within the jurisdiction
of this Court. The writ does not operate
in rem, but
in personam. If the party is within the jurisdiction of
the Court, it is all that is necessary to give full effect and
operation to the injunction; and it is immaterial where the subject
matter of the suit, which is only affected consequentially, is
situated. This principle is fully recognized by this Court in the
case of
Massie v.
Watts, 6 Cranch 157, when this general rule is laid
down, that in a case of fraud of trust or of contract, the
jurisdiction of a court of chancery is sustainable wherever the
person may be found, although lands not within the jurisdiction of
the court may be affected by the decree. And reference is made to
several cases in the English Chancery recognizing the same
principle. In the case of
Penn v. Lord Baltimore, 1 Ves.
444, a specific performance of a contract
Page 30 U. S. 80
respecting lands lying in North America was decreed, the
chancellor saying the strict primary decree of a Court of equity is
in personam, and may be enforced in all cases when the
person is within its jurisdiction.
Upon the whole, I am of opinion,
1. That the Cherokees compose a foreign state within the sense
and meaning of the Constitution, and constitute a competent party
of maintain a suit against the State of Georgia.
2. That the bill presents a case for judicial consideration
arising under the laws of the United States and treaties made under
their authority with the Cherokee Nation, and which laws and
treaties have been, and are threatened to be still further,
violated by the laws of the State of Georgia referred to in this
opinion.
3. That an injunction is a fit and proper writ to be issued to
prevent the further execution of such laws, and ought therefore to
be awarded.
And I am authorised by my brother Story to say that he concurs
with me in this opinion.