CHEROKEE NATION v. STATE OF GEORGIA
SUPREME COURT OF THE UNITED STATES
JANUARY TERM, 1831
5 PET. 1
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 of Indians, 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 term “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 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 peoples 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;
5 PET.—1
The bill filed on behalf of the Cherokees seeks to restrain a state from the forcible exercise of legislative power over a neighboring 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 possessiоns, 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 savors too much of the exercise of political power, to be within the proper province of the judicial department.
MOTION for Injunction. This case came before the court on a motion, on behalf of the Cherokee nation of Indians, for a subpœna, 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
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
The bill stated 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 stated, was 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 56th to the 38th degree of north
The bill proceeded to refer to the treaty concluded at Hopewell, on the 28th November 1785, “between the commissioners of the United States and head-men and warriors of all the Cherokees;” the treaty of Holston, of the
The bill alleged, from the earliest intercourse between the United States and the Cherokee nation, an ardent desire had been evinced by the United States to lead the Cherokees to a greater degree of civilization. This is shown by the 14th 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 аssurances 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
The bill claimed 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
The bill proceeded 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 20th day of that month and year, entitled, “an act to add the territory lying within this state, and оccupied 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 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, was 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
The bill then proceeded 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 had always been voluntarily made by the Indians, in their national character; and that cessions had 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 referred 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 stated, 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
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
It also alleged, that the portion of the nation who emigrated
Numerous instances of proceedings were 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 had 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 co-operate with the civil officers of Georgia, in enforcing their laws upon them.” Under these circumstances, it was said, that it could not but be seen, that unless this court should interfere, the complainants had 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
These proceedings, it was alleged, were wholly inconsistent with equity and good conscience, tended to the manifest wrong of the complainants, and violated the faith of the treaties to which Georgia and the United States were parties, and of the constitution of the United States. These wrongs were of a character wholly irremediable by the common law; and the complainants were wholly without remedy of any kind, except by the interposition of the court. The bill averred, that this court had, 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 were the supreme law of the land. That as a foreign state, the complainants claimed the exercise of the powers of the court to protect them in their rights, and that the laws of Georgia, which interfered with their rights and property, should be declared void, and their execution be perpetually enjoined.
The bill stated, that John Ross was “the principal chief and executive head of the Cherokee nation;” and that, in a full and regular council of that nation, he had been duly authorized to institute this and all other suits which might become necessary for the assertion of the rights of the entire nation. The bill then proceeded, in the usual form, to ask an 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, might 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
On the day appointed for the hearing, the counsel for the complainants
The supplemental bill stated, 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, had 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, had 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 were informed and believed, immediately communicated by him to the legislature of the
The complainants begged leave further to state, that the legislature of the state of Georgia, at the same session, passed the following laws, which had 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 willfully cut down or deface any marked trees, or remove any land-marks 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 was stated, that the lands within the boundary of the Cherokee territory were 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 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
The supplemental bill further stated the proceedings of the governor of Georgia, under these laws; and that he had stationed an armed force of the citizens of Georgia, at the gold mines within the territory of the complainants, who were engaged in enforcing the laws of Georgia. Additional acts of violence and injustice were 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 alleged, that the several legislative acts, therein set forth and referred to, were in direct violation of the treaties enumerated in their bill, to which this was 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 prayed, that this supplement might be taken and received as a part of their bill; that the several laws of Georgia therein set forth might 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 was a supplement; and that these complainants might 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 were the subject of their bill as first drawn.
The case was argued by Sergeant and Wirt, on the part of the complainants. No counsel appeared for the state of Georgia.
- That the parties before the court were such as, under the constitution, to give to this court original jurisdiction of the complaint made by the one against the other.
- That such a case or controversy, of a judicial nature, was presented by the bill, as to warrant and require the interposition of the authority of the court.
- That the facts stated by the complainants exhibited such a case in equity, as to entitle them to the specific remedy by the injunction prayed for in the bill.
MARSHALL, Ch. J., 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 Cherokee 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
Before we can look into the merits of the case, a prеliminary 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 citizens thereof, and foreign states, citizens or subjects.” A subsequent clause of the same section gives the supreme court original jurisdiction, in all
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.
In considering this subject, the habits and usages of the Indians, in their intercourse with their white neighbors, 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 application 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 conven-
The counsel for the plaintiffs contend, that the words
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
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 neighboring 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
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 savors 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.
JOHNSON, Justice.—In pursuance of my practice, in giving an opinion on all constitutional questions, I must present my viеws on this. With the morality of the case, I have no concern; I am called upon to consider it as a legal question.
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 cognisance? Until these questions are disposed of, we have no right to look into the nature of the controversy any further 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.
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 recognised 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 оr 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 favor and protection of the
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,
To pursue this subject a little more categorically. If these Indians are to be called a state: thеn—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 recognised 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 re-
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 recognised 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 recognised, 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 further 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
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 recognised by the executive, under that form of government, we cannot recognise 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
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 recognised 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
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 showed some earnestness and capacity in asserting our claim to be enfranchised. Can it then be supposed, that when using those terms, we mеant 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 as 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
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 they 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 cognisance 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
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, even-handed justice, between the parties. As to restoring the complainant to the exercise of jurisdiction, it will be seen at once, that this 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 favor; how is
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.
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 cognisable in a court of justice; independent of the general principle, that for their political acts, states were not amenable to tribunals of justice.
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.
BALDWIN, Justice. - 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
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 United 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 viеw, refer to the acts of the federal government on the same subject.
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
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, 40,000l. sterling of Indian goods be imported.” - “No person shall be permitted to trade with the Indians, without a license;” “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 burden 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 recognised 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
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 U. S. 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 north-western 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 U. S. 477.) By the fourth article, the said territory, and the states which may be formed therein, shall for ever 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.
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 favor 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 $4000 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
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 U. S. Laws 619), and so understood at the adoption of the constitution.
In considering the bearing of the constitution on their rights, it must be borne in mind, that a majority оf 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
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, occupancy of allotted hunting-grounds.
We can thus expound the constitution, without a reference
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 population
The third clause of the eighth article shows most distinctly the sense of the convention in authorizing congress to regulate commerce with the Indian tribes. The character of the Indian communities had been settled by many years of uniform usuage, under the old government; characterized by the names of nations, towns, villages, tribes, head-men 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; nor 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, regulating it
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 Wheat. 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 states,” 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
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 north-west territory, it was adapted to the present constitution of the United States in 1789 (1 U. S. Stat. 50); applied as the rule for its government to the territory south of the Ohio in 1790, except the sixth article (Ibid. 123); to the Mississippi territory in 1798 (Ibid. 549); and with no exception, to Indiana in 1800 (2 Ibid. 58); to Michigan in 1805 (Ibid. 309); to Illinois in 1809 (Ibid. 514).
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. (2 U. S. Stat. 139.) In the same year, Georgia ceded her lands west of her present boundary to the United States; and by the second
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.” (7 U. S. Stat. 39.) 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 divest-
In thus testing the rights of the complainants as to their national character, by the old confederation, resоlutions 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. Neilson, 2 Pet. 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 act or recognition of the other departments of this government is, I think, fully established in the case of United States v. Palmer, 3 Wheat. 634-5; The Divina Pastora, 4 Ibid. 63; and The Anne, 6 Ibid. 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. 651; 4 Ibid. 192; Green v. Biddle, 8 Ibid. 98; Ogden v. Saunders, 12 Ibid. 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. Finley, 2 Pet. 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 recognise 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 recognised 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
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. 8 Wheat. 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. 6 Cranch 88, 142; 9 Ibid. 11. In the case of Johnson v. McIntosh, 8 Wheat. 543, 571, the nature of the Indian title to lands 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. 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
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,
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.
THOMPSON, Justice. (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
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 injustice 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 cognisance, I shall proceed to the examination of the case under the following heads. 1. Is the Cherokee nation of
1. By the constitution of the United States it is declared (Art. 3, § 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 11th 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;
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
Testing the character and condition of the Cherokee Indians by these rules, it 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 goverment 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.
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 connection, 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
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
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. Finley, 2 Pet. 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,
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. Finley. 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 connection 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
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,
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 gratuituous obligations assumed on the part of the United States. They are obligations founded upon a considera-
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 recognised as such by the executive and legislative departments of the government; they being more particularly intrusted with our foreign relations. 4 Cranch 241; 3 Wheat. 634; 4 Ibid. 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 understood, of course, as
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 of November 1785
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. (
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.” (
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 of 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 confеderation 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 (
The provision, as contained in the confederation, may aid in illustrating what is to be inferred from some parts of the constitution (
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
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 endeavored 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 *endeavoring
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 (
The question touching the citizenship of an Oneida Indian came under *the
“The 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 further. 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 *a
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 recognised 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, *why
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 endeavored 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. 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 authorizes 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 cognisance.
*What
Again, by the treaty of Holston, in 1791 (
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 acknowledgment for the protection of the United States (see treaty of 1798,
It may be necessary here briefly to notice some of the provisions of this
It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the 19th 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 recognises 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 *treaty
But such was not the condition and character of the Cherokee nation, in any respect whatever, in the year 1802, nor 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 any treaties made with them, remain unimpaired. These treaties are acknowledged by the United States to be in full force, by the proviso to the 7th section of the act of the 28th of May 1830, which declares, that nothing in this act contained shall be construed as authorizing 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,
The laws of Georgia, set out in the bill, if carried fully into operation, go the length of 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,
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 non-fulfilment 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 *are
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
According to the view which I have already taken of the case, I must consider the question of right as settled in favor 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? *This
The doctrine of this court in the case of Osborn v. 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 *question
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 recognised by this court, in the case of Massie v. Watts, 6 Cranch 148; where 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 recognising the same principle. In the case of Penn v. Lord Baltimore, 1 Ves. Sen. 444, a specific performance of a *contract
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 to 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 authorized by my brother STORY to say, that he concurs with me in this opinion.
Motion denied.
Hearsay evidence.—Land-law of Kentucky.
A witness testified, that she resided in Petersburg, Virginia, and that Bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg, she had seen Bishop Madison, but was acquainted with his daughter only by report; that she never had seen her nor Mr. Scott, but recollected to have heard of their marriage, in Petersburg, as she thought, before the death of her father; that she could not state from whom she heard the report, but that she had three cousins, who went to college, at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she heard of the marriage of Miss Madison, before her own marriage, as she thought, which was in 1810; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr. Madison was dead: Held, that so much of this evidence as went to prove the death of Mr. Madison, was admissible on the trial, and ought nоt to have been excluded by the court.1
A patent was issued by the governor of Kentucky, for a tract of land containing 1850 acres, by survey, &c., describing the boundaries; the patent described the exterior lines of the whole tract, after which the following words were used, “including within the said bounds 522 acres entered for John Preston, 425 acres for William Garrard—both claims have been excluded in the calculation of the plat, with its appurtenances,” &c. Patents of this description are not unfrequent in Kentucky; they have always been held valid, so far as respected the land not excluded, but to pass no legal title to the land excluded from the grant. The words manifest an intent to except the lands of Preston and Garrard from the patent; the government did not mean to convey to the patentee lands belonging to others, by a grant which recognises the title of these others. If the court entertained any doubt on this subject, those doubts would be removed, by the construction which it is understood has been put on this patent by the courts of the state of Kentucky.2
The defendants claimed under a patent issued by the governor of Kentucky, on the 3d of January 1814, to John Grayham, and two deeds from him, one to Silas Ratliffe, one of the defendants, dated in August 1814, for 100 acres, the other to Thomas Owings, another defendant, for 400 acres, dated 25th March 1816; and gave evidence conducing to prove that they, and those under whom they claimed, had a continued possession, by actual settlement, more than seven years next before the bringing of this suit; the court instructed the jury, that if they believed from the evidence, that the defendants’ possession had been for more than seven years before the bringing of the suit, that the act, commonly called the seven years’ limitation act, of Kentucky, passed in 1809, was a bar to the plaintiffs’ recovery; unless they found, that the daughter of the patentee, holding under a patent from the state of Virginia, was a feme covert, when her father, the patentee, died; or was so at the time the defendants acquired their titles by contract or deed from the patentee, John Grayham, the “patentee *under
ERROR to the Circuit Court of Kentucky. On the 2d of April 1825, the plaintiffs commenced an action of ejectment against the defendants, assert-