Lead Opinion
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 ease, a preliminary inqury 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 *cases in which a state shall be a p party. The party defendant may then unquestionably be sued in *- this court. May the plaintiff sue in it ? Is the Cherokee nation a foreign state, in the sense in which that term is used in the constitution ? The counsel for the plaintiffs have maintained the affirmative of this pi’oposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state, from the settlement of our country. The numerous treaties made with them by the United States, 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.
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 statе of the Union, and have insisted that, individually, they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state; each individual being foreign, the whole must be foreign.
This argument is imposing, but we must examine it more closely, before we yield to it. The condition of the Indians in relation to the United States is, perhaps, unlike that of any other two people in existence. In 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 Indian ter- ..¡, ritory is admitted to compose a part of the United States. In all *- our maps, geographical treatises, histories and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves, in their treaties, to be under the protection of the United States ; they admit, that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper ; and the Cherokees in particular were allowed
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 lime 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 desig-' nated 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 *“ Indian tribes ” were introduced into the article, empowering congress to reg- *- ulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole power of managing those affairs to the government about to be instituted, the convention conferred it explicitly ; and omitted those qualifications which embarrassed the exercise of it, as granted in the confederation. This may be admitted, without weakening the construction which has been intimated. Had the Indian tribes been foreign nations, in the view of the convention, this exclusive power of regulating intercourse with them might have been, and, most probably, would have been, specifically given, in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been emрowered “ to regulate commerce with foreign nations, including the Indian tribes, and among the several states.”' This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly.
It has been also said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument ; their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings, and the peculiar sense in which it is used in any sentence, is to be determined by the context. This may not be equally true with respect to proper names. “ Foreign nations ” is a general term, the application of which to Indian tribes, when used in the American constitution, is, at best, extremely questionable. In one article, in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate, in terms clearly contradistinguishing them from each other. We perceive plainly, that the constitution, in this article, does not comprehend Indian tribes in the general term “ foreign nations ;” not, we presume, because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term “ foreign state ” is introduced, we cannot impute to the convention, the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that ^construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it. *-
The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion, that an Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States.
A serious additional objection exists to the jurisdiction of the court. Is the' matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a 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 рrovince 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.
— In pursuance of my practice, in giving an opinion on all constitutional questions, I must present my views on this. With the morality of the case, I have no concern ; I am called upon to consider it as a legal question.
*The object of this bill is to claim the interposition of this court, as the means of preventing the state of Georgia, or the public functionaries of the state of Georgia, from asserting certain rights and powers over the country and people of the Cherokee nation. It is not enough, in order to come before this court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the constitution, to bring an original suit to this court. It is essential to such suit, that a state of this Union should be a party ; so says the second member of the second section of the third article of the constitution ; the other party must, under the control of the eleventh amendment, be another state of the Union, or a foreign state. In this case, the averment is, that the complainant is a foreign state.
Two preliminary questions then present themselves : 1. Is the complainant a foreign state, in the sense of the constitution ? 2. Is the case presented in the bill one of judicial 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 ?
I. 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 vаin now to inquire into the sufficiency of the principle, that discovery gave the right of dominion over the country discovered. When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer.' It cannot be questioned, that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian nation, in which the right of sovereignty is mentioned as a part of the matter ceded.
It may be suggested, that they were uniformly cessions of land, without inhabitants ; and therefore, words competent to make a cession of sovereignty were unnecessary. This, however, is not a full answer, since soil, as well as people, is the object of sovereign action, and may be ceded, with or without the sovereignty, or may be ceded, with the express stipulation that the inhabitants shall remove. In all the cessions to us from the civilized states of the old world, and of our transfers among ourselves, although of the same property, under the same circumstances, and even when occupied by these very Indians, the express cession of sovereignty is to be found. In the very treaty of Hopewell, the language or evidence of which is appealed to, as the leading proof of the existence of this supposed state, we find the commissioners of the United States expressing themselves in these terms. “ The commissioners plenipotentiary of the United States give peace to all the Cherokees, and l’eceive them into the favor and protection of the ■^'United States on the following conditions.” This is certainly the r.|:i language of sovereigns and conquerors, and not the address of equals L to equals. And again, when designating the country they are to be confined to, comprising the very territory which is the subject of this bill, they say, “ Art. 4. The boundary allotted to the Cherokees for their hunting-grounds ” shall be as therein described. Certainly, this is the language of concession on our part, not theirs ; and when the full bearing and effect of those words, “for their hunting-grounds,” is considered, it is difficult to think, that they were then regarded as a state, or even intended to be so regarded. It is clear, that it was intended to give them no other rights over the territory than what were needed by a race of hunters ; and it is not easy to see, how their advancement beyond that state of society could ever have been promoted, or, perhaps, permitted, consistently with the unquestioned rights of the states, or United States, over the territory within their limits. The pre-emptive right, and exclusive right of conquest in case of war, was never questioned to exist in the states, which circumscribed the whole or
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 prepare them for what was probably then con- -* templated, to wit, to incorporate them in time into our respective governments ; a policy which their inveterate habits and deep-seated enmity has altogether baffled. But the project of ultimately organizing them into states, within the limits of those states which had not ceded or should not cede to the United States the jurisdiction over the Indian territory within their bounds, could not possibly have entered into the contemplation of our government. Nothing but express authority from the states could have justified such a policy, pursued with such a view.
To pursue this subject a little more categorically. If these Indians are to be called a state : then — 1. By whom are they acknowledged as such? 2. When did they become so ? 3. And what are the attributes by which they are identified with other states ?
As to the first question, it is clear, that as a state they are known to nobody on earth but ourselves, if to us : how then can they be said to be 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 Seminóles 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 uot 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 wo chose to allot them. And almost every attribute of soverеignty 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 f.TiA TTnif.ArJ Sf,a.f,A.s aha.ll thinlr rvrnr»AV ♦ nmrmnf.inrr in t.Avma f.A a. ■»
There is one consequence that would necessarily flow from the recognition of this puople 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? Wo 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 *United States, which always looked to these Indian lands as a certain future acquisition, not less than the express words of the treaty of Hopewell, must so decide the question.
If they were not regarded as one of the family of nations, at the time of that treaty, even though, at that time, first subdued and stripped of the attributes of a state, it is olear, that, to bе 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 adnission 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 *a state, is still a grade below them all; for not to be able to alienate, without permission of the remainder-man or lord, places them in a state of feudal dependence.
However, I will enlarge no more upon this point; because I believe, in one view, and in one only, if at all, they are or may be deemed a state, though not a sovereign state, at least, while they occupy a country within our limits. Their condition is something like that of the Israelities, 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 havе intended to designate them, when using the epithets “ foreign” and “ state.” State, and foreign state, are used in contradistinction to each other. Wo 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 meant to include any others than those who were admitted into the community of nations, of whom, most notoriously, the Indians were no part ?
The argument is, that they were states ; and if not states of the Union, must be foreign states. But I think it very clear, that the constitution neither speaks of them as states or foreign states, but as just 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 *having -• neither laws nor government, beyond what is required in a savage state. The distinction is clearly made in that section which vests in congress
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 th« 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 1 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, exеrcised under the government of the Indians.
What does this series of allegations exhibit, but a state *oi war, and the fact of invasion ? They allege themselves to be a sovereign L independent state, and set out that another sovereign state has, by its laws, its functionaries, and its armed force, invaded their state and put down their authority. This is war, in fact ; though not being declared with the usual solemnities, it may perhaps be called war in disguise. And the contest is distinctly a contest for empire. It is not a case of meum and tuum, in the judicial, but in the political sense. Not an appeal to laws, but to force. A case in which a sovereign undertakes to assert his right upon his sovereign responsibility ; to right himself, and not to appeal to any arbiter but the sword, for the justice of his cause. If the state of Maine were to extend its laws over the province of New Brunswick, and send its magistrates to carry them into effect, it would be a parallel case. In the Nabob of Arcot's Case (3 Bro. C. C. 292 ; s. c. 1 Ves. jr. 371; 2 Ibid. 50), a case of a political character not one half so strongly marked as this, the courts of Great Britain refused to take jurisdiction, because it had its origin in treaties entered into between sovereign states : a case in which the appeal is to the sword and to Almighty justice, and not to courts of law or equity. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjugation.
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 ^ , *that decree to be carried into effect? Say, as to soil; as to jurisdicJ tion, it is not even to be considered. From the complainant’s own showing, we could not do justice between the parties. Nor must I be considered as admitting that this court could, even upon the other alternative, exercise a jurisdiction over the person, respecting lands under the jurisdiction of a foreign nation. I know of no such instance. In Penn v. Lord Baltimore, the persons were in England, and the land within the king’s dominions, though in America.
There is still another view in which this cause of action may be considered in regard to its political nature. The United States, finding themselves involved in conflicting treaties, or, at least, in two treaties respecting the same property, under which two parties assert conflicting claims ; one of the parties, putting itself upon its sovereign right, passes laws which in effect declare the laws and treaties under which the other party claims, null and void. It proceeds to carry into effect those laws, by means of physical force ; and the other party appeals to the executive department for protection. Being disappointed thex-e, the party appeals to this court, indirectly to compel the executive to pursue a course of policy, which his sense of duty, or ideas of the law, may indicate should not be pursued. That is, to declare war against a state, or to use the public force to repel the force, and resist the laws of a state, when his judgment tells him the evils to grow out of such a course may be incalculable. What these people may have a right to claim of the executive power is one thing ; whether we are to be the instruments to compel another branch of the government to make good the stipulations of treaties, is a very different question. Courts of justice are properly excluded from all considerations of policy, and therefore, are very unfit instruments to control the action of that branch of government, which may often be compelled, by the highest considerations of public policy, to withhold even the exex-cise of a positive duty.
There is then a gi-eat deal of good sense in the rule laid down in the Nabob of Arcot’s Case, to wit, that as between sovereigns, bx-eaches of treaty were not breaches of contract cognisable in '-a court of justice; independent of the general px-inciple, that for their political acts, states were not amenable to tribunals of justice.
*There is yet another view of this subject, which fox-bids our taking jux-isdiction. Thex-e is a law of the United States, which purports
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, bоth 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.
— 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 *me at- the threshold, and forbids me to examine into ..¡, the acts complained of. *-
As the reasons for the judgment of the court seem to me more important than the judgment itself, in its effects on the peace of the country, and the condition of the complainants, and as I stand alone on one question of vital concern to both ; I must give my reasons in full. The opinion of this court is of high authority in itself ; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart. The judge, who stands alone in decided dissent on matters of the infinite magnitude which this case presents, must sink under the continued and unequal struggle ; unless he can fix himself by a firm hold on the constitution and laws of the countiy. 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
In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old congress, from the commencement of the revolution up to the adoption of the constitution ; so as to ascertain whether the Indians were considered and treated with, as tribes of savages, or independent nations, foreign states, on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations, and in connection with this view, refer to the acts of the federal government on the same subject.
*In 1781 (1 Laws U. S. 586), a department for foreign affairs was established, to whieh was intrusted all correspondence and communiсation with the ministers or other officers of foreign powers, to be carried on through that office ; also with the governors and presidents of the several states ; and to receive the applications of all foreigners, letters of' sovereign powers, plans of treaties, conventions, See,., and other acts of congress relative to the department of foreign affairs ; and all communications, as well to as from the United States in congress assembled, were to be made through the secretary, and all papers on the subject of foreign affairs to be addressed to him. The same department was established under the present constitution in 1789, and with the same exclusive control over all the foreign concerns of this government with foreign states or princes. (2 Laws U. S. 6, 7.) In July 1775, congress established a department of Indian affairs, to be conducted under the superintendence of commissioners. (1 Ibid. 597.) By the ordinance of August 1786, for the regulation of Indian affairs, they were placed under the control of the war department (Ibid. 614) ; continued there by the act of August 1789 (2 Ibid. 32, 33), under whose direction they have ever since remained. • It is clear, then, that neither the old nor new government did ever consider Indian affairs, the regulation of our intercourse or treaties with them, as forming any part of our foreign affairs or concerns with foreign nations, states or princes.
I will next inquire, how the Indians were considered ; whether as independent nations, or tribes with whom our intercourse must be regulated by the law of circumstances. In this examination, it will be found, that different words have been applied to them in treaties and resolutions of congress ; nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees, for instance, or the Cherokee nation. I shall not stop to inquire into the effect which á name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject-matter acted on ; believing it requires no reasoning to prove, that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these ^national attributes, which are •* inherent in sovereign power pre- and self-existing, or confer them, by their use, where all the substantial requisites of sovereignty are wanting.
The proceedings of the old congress will be found in 1 Laws U. S. 597, commencing 1st June 1775, and ending 1st September 1788, of which some
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 *one r¡j¡ from New York, March 1st, 1781, of the soil and jurisdiction of all L 0 the land in their charter, west of the present boundary of Pennsylvania (1 Laws of U. S. 471), which was executed in congress and accepted.
This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this subject to the adoption of the constitution. The cession from Virginia in 1784 was of soil and jurisdiction. So, from Massachusetts in 1785, from Connecticut in 1800, from South Carolina in 1787, from Georgia in 1802. North Carolina made a partial cession of land, but a full one of her sovereignty and jurisdiction of all without her present limits in 1789. (2 Laws U. S. 85.) Some states made reservations of lands to a small amount, hut, 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 terri
*In 1782, a committee, to whom was referred a letter from the secretary at war, reported, “ that they have had a conference with the two deputies from the Catawba nation of Indians ; that their mission respects certain tracts of land reserved for their use, in the state of South Carolina, which they wish may be so secured to their tribe, as not to be intruded into by force, nor alienated even with their own consent: — Whereupon, resolved, that it be recommended to the legislature of South Carolina to take such measures for the satisfaction and security of the said tribe, as the said legislature shall in their wisdom think fit.” (1 Laws U. S. 067.) After this, the Catawbas cannot well be considered an independent nation or foreign state. In September 1783, shortly after the preliminary, treaty of peace, congress, exercising the powers of acknowledged independence and sovereignty, issued a proclamation, beginning in these words : “ whereas, by the ninth of the articles of confederation, it is, among other things, declared, that the United States in congress assembled, have the solo and exclusive right and power of regulating the trade, and managing all affairs with the Indians, not members of any of the states, provided that the legislative right of every state, within its own limits be not infringed or violated prohibiting settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular state, and from purchasing or receiving gifts of land, without the express authority and directions of the United States in congress assembled. Conventions were to be held with the Indians in the northern and middle departments, for the purpose of receiving them into the favor and protection of the United States, and of establishing boundary lines of property, for separating and dividing the settlements of the citizens from the Indian villages and hunting-grounds, &c. “ Resolved, that the preceding measures of congress, relative to Indian affairs, shall not be construed to affect the territorial claims of any of the states, or their legislative rights, within their respective limits. Resolved, that it will be wise and necessary, to erect a district of the western territory into a distinct government, and that a committee be appointed to prepare a plan for a temporary government, until the ^ , inhabitants shall form a permanent constitution *for themselves, and -* as citizens of a free, sovereign and independent state, be admitted to a representation in the Union.” In 1786, a general ordinance was passed for the regulation of Indian affairs under the authority of the ninth article of the confederation, which throws much light on our relations with them (page 614). It closes with a direction, that in all cases where transactions with any nation or tribe of Indians shall become necessary for the purposes of the ordinanсe, which cannot be done without interfering with the legislative rights of a state, the superintendent within whose district the same shall happen, shall act in conjunction with the authority of such state. After
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 *or states, unless on the Barbary coast. A treaty was accordingly made, in November following, between the commissioners L plenipotentiaries of the United States, of the one part, and the head-men and warriors of all the Cherokees, of the other. The word nation is not used in the preamble, nor any part of the treaty, so that we are left to infer the capacity in which the Cherokees contracted, whether as an independent nation, or foreign state, or a tribe of Indians, from the terms of the treaty, its stipulations and conditions. “ The Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States.” (Art. 3, 1 Laws U. S. 322.) “ The boundary allotted to the Cherokees for their hunting-grounds between the said Indians and the citizens of the United States, within the limits of the United States, is and shall be the following,” viz. (as defined in Art. 4.) “ For the benefit and comfort of the Indians, and for the prevention of injuries and aggressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they shall think proper.” (Art. 9.) “ That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to congress.” (Art. 12.)
This treaty is, in the beginning, called “ article :” the word “ ti’eaty ” 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
*The meaning of the words “ deputy to congress ” in the twelfth article, may be as a person having a right to sit in that body, as, at that time, it was composed of. delegates or deputies from the states, not as at present, representatives of the people of the states; or it may be as an agent or minister. But if the former was the meaning of the parties, it is conclusive to show, that he was not and could not be the deputy of a foreign state, wholly separated from the Union. If he sat in congress as a deputy from any state, it must be one having a political connection with, and within the jurisdiction of, the confederacy; if as a diplomatic agent, he could not represent an independent or sovereign nation, for all such have an unquestioned right to send such agents, when and where they please. The securing the right, by an express stipulation of the treaty ; the declared objects in conferring the right, especially, when connected with the ninth article ; show beyond a doubt, it was not to represent a foreign state or nation, or one to whom the least vestige of independence or sovereignty as to the United States appertained. There can be no dependence so anti-national, or so utterly subversive, of national existence, as transferring to a foreign government the regulation of its trade, and the management of all their affairs, at their pleasure. The nation or state, tribe or village, headmen or warriors of the Cherokees, call them by what name we please ; call the articles they have signed a definitive treaty, or an indenture of servitude ; they are not, by its force or virtue, a foreign state, capable of calling into legitimate action the judicial power of this Union, by the exercise of the original jurisdiction of this court, against a sovereign state, a component part of this nation. Unless the constitution has imparted to the Cherokees a national character, never recognised under the confederation; and which, if they ever enjoyed, was surrendered by the treaty of Hopewell; they cannot be deemed, in this court, plaintiffs in such a case as this.
In considering the bearing of the constitution on their rights, it must be borne in mind, that a majority of the states represented in the convention had ceded to the United States the soil and jurisdiction of their western lands, or claimed it to be remaining in themselves ; that congress asserted, as to the ceded, and the states, as to the unceded territory, their right to the # , soil absolutely, and the dominion in full sovereignty, *within their ' respective limits, subject only fo Indian occupancy, not as foreign states or nations, but as dependent on, and appendant to the state governments ; that before the convention acted, congress had erected a government in. the north-western territory, containing numerous and powerful nations or tribes of Indians, whose jurisdiction was contemned, and whose sovereignty was overturned, if it ever existed, except by permission of the states or congress, by ordaining, that the territorial laws should extend over the whole district; and directing divisions for the execution of civil and criminal process in every part; that the Cherokees were then dependents, having given up all their affairs to the regulation and management of congress, and that all the regulations of congress over Indian affairs, were then in force over an immense territory, under a solemn pledge to the inhabitants, that
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 *to the definitions of a state or nation by any foreign writer, hypothetical L reasoning, or the dissertations of the Federalist. This would be to substitute individual authority in place of the declared will of the sovereign power of the Union, in a written fundamental law. Whether it is the emanation from the people or the states, is a moot question, having no bearing on the supremacy of that supreme law which, from a proper source, has rightfully been imposed on us by sovereign power. Where its terms are plain, I should, as a dissenting judge, deem it judiciаl sacrilege to put my hands on any of its provisions, and arrange or construe them according to any fancied use, object, purpose or motive, which, by an ingenious train of reasoning I might bring my mind to believe was the reason for its adoption by the sovereign power, from whose hands it comes to me as the rule and guide to my faith, my reason and judicial oath. In taking out, putting in, or varying the plain meaning of a word or expression, to meet the results of my poor judgment, as to the meaning and intention of the great charter, which alone imparts to me my power to act as a judge of its supreme injunctions, I should feel myself acting upon it by judicial amendments, and not as one of its executors. I will not add unto these things ; I will not take away from the words of this book of prophecy; I will not impair the force or obligation of its enactments, plain and unqualified in its terms, by resorting to the authority of names ; the decisions of foreign courts ; or a reference to books or writers. The plain ordinances are a safe guide to my judgment. When they admit of doubt, I will connect the words with the practice,' usages and settled principles of this government, as administered by its fathers, before the adoption of the constitution ; and refer to the received •opinion and fixed understanding of the high parties who adopted it; the usage and practice of the new government, acting under its authority ; and the solemn decisions of this court, acting under its high powers and responsibility ; nothing fearing, that in so doing, I can discover some sound and
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 bo 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 of all the states would bo included in the federal numbers, co-exten*43] sively with the boundaries of all the states included in this Union. The insertion of this clause conveys a clear definite declaration, that there were no independent sovereign nations or states, foreign or domestic, within their boundaries, which should exclude them from the federal enumeration, or any bodies or communities within the states, excluded from the action of the federal constitution, unless by the use of express words of exclusion. The delegates who represented the states in the convention well knew the existing relations between the United States and the Indians, and put the constitution in a shape for adoption, calculated to meet them ; and the words used in this clause exclude the existence of the plaintiffs as a sovereign or foreign state or nation, within the meaning of this section, too plainly to require illustration or argument.
The third clause of the eighth article shows most distinctly the sense of
The 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,
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 (l 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. 128) ; to the Mississippi territory in 1798 (Ibid. 549) ; and with no exception, to Indiana in 1800 (2 Ibid. 58) ; to Michigan in 1805 (Ibid. 809) ; 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 *sec- -■ ond article of the convention, the United States ceded to Georgia whatever claim, right or title they may have to the jurisdiction or soil of any lands south of Tennessee, North or South Carolina and east of the line of the cession by Georgia. So that Georgia now has all the rights attached to her by her sovereignty, within her limits, and which are saved to her by the second section of the fourth article of the constitution, and all the United States could cede either by their power over the territory, or their treaties with the Cherokees.
The treaty with the Cherokees, made at Holston, in 1791, contains only one article which has a bearing on the political relations of the contracting parties. In the second article, the Cherokees stipulate “ that the said Cherokee nation will not hold any treaty with any foreign power, individual state, or with individuals of any state.” (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 nаtional character, by the old confederation, resolutions and ordinances of the old congress, the provisions of the constitution, treaties held under the authority of both, and the subsequent legislation thereon, I have followed the rule laid down for my guide by this court, in Foster v. Neilson,
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,
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.
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.
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.
Dissenting Opinion
(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 *contro- [*61
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 ease, 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 Indians a competent party to sue in this court? 2. *Is a sufficient -
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 forеign 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 ^person, having an understanding and a will peculiar to itself, and is ^ susceptible of obligations and laws. Vattel 1. Nations being com- *- posed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states ; are to be considered as so many free persons, living together in a state of nature. Vattel 2, § 4. Every nation that governs itself,, under what form soever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient, if it be really sovereign and independent : that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The conditions of these unequal alliances may be infinitely vailed ; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease, on this account, to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self-government, and sovereign and independent authority, is left in the administration of the state. Vattel, c. I, pp. 16, VI.
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 iominion 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. *And this has been the light in which _ ^ .hey have, until recently, been considered, from the earliest settle- L °' ment of the country, by the white people. And indeed, I do not understand, that-it is denied by a majority of the court, that the Cherokee Indians form a sovereign state, according to the doctrine of the law of nations;
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 Européans, 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, v/ith any other power on earth. And if the Cherokees were then a foreign nation ; when or how have they lost that character
They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence, and the rights of self-government, and become subject to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side, -
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 ha
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, xas 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,
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 Johnson in the case of Fletcher v. Peck,
Although there are many cases in which one of these United States has been sued by another, I am not aware of any instance in which one of the United States has been sued by a foreign state. But no doubt can be entertained, that such an action might be sustained, upon a proper case being presented. It is expressly provided for in the constitution ; and this provision is certainly not to be rejected as entirely nugatory. Suppose, a state, with the consent of congress, should enter into an agreement with a foreign power (as might undoubtedly be done, Constitution, Art. 1, § 10), for a loan of money ; would not an action be sustained in this court to enforce payment thereof ? Or suppose, the state of Georgia, with the consent of congress, should purchase the right of the Cherokee Indians to this territory, and enter into a contract for the payment of the purchase-money ; could there be a doubt, that an action eould be sustained upon such a contract ? No objection would certainly be made for want of competency in that nation to make a valid contract. The numerous treaties entered into with the nation would be a conclusive answer to any such objection. And if an action could
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 consideration paid by the *Indians, by cession of part of their territory. And if they, as a nation, are competent to make a treaty or contract, it L would seem to me, to be a strange inconsistency, to deny to them the right and the power to enforce such a contract. And where the right secured by such a treaty forms a proper subject for judicial cognisance, I can perceive no reason why this court has not jurisdiction of the case. The constitution expressly gives to the court jurisdiction, in all cases of law and equity arising under treaties made with the United States. No suit will lie against the United States, upon such treaty, because no possible case can exist, where the United States can be sued. But not so with respect to a state : and if any right secui-ed by -treaty has been violated by a state, in a case proper for judicial inquiry, no good reason is perceived, why an action may not be sustained for violation of a right secured by treaty, as well as by contract under any other form. The judiciary is certainly not the department of the government authorized to enforce all rights that may be recognised and secured by treaty. In many instances, these are mere political rights with which the judiciary cannot deal. But when the question relates to a mere right of property, and a proper case can be made between competent parties, it forms a proper subject for judicial inquiry.
It is a rule, which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states or nations, those powers that are recognised as such by the executive and legislative departments of the government; they being more particularly intrusted with our foreign relations.
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 *«il *(* Laws U. S. 822), mutual stipulations are entered into, to •' restore all prisoners taken by either party, and the Cherokees stipulate to restore all negroes and all other property taken from tbe citizens of the United States ; and a boundary line is settled between the Cherokees and the citizens of the United States, and this embraced territory within the chartered limits of Georgia. And by the sixth article, it is provided, that if any Indian, or person residing among them, or who shall take refuge in their nation, shall commit a robbery or murder, or other capital crime, on any citizen of the United States, or person under their protection, the nation or tribe to which such offender may belong, shall deliver him up, to be punished according to' the ordinances of the United States. What more explicit recognition of the sovereignty and independence of this nation could have been made ? It was a direct acknowledgment, that this territory was under a foreign jurisdiction. If it had been understood, that the jurisdiction of the state of Georgia extended over this territory, no such stipulation would have been necessary. The process of the courts of Georgia would have run into this, as well as into any other part of the state. It is a stipulаtion analogous to that contained in the treaty of 1794 with England, (8 U. S. Stat. 129), by the 27th article of which it is mutually agreed, that each party will deliver up to justice all persons, who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of tho countries of the other. Upon what ground can any distinction be made, as to the reason and necessity of such stipulation, in the respective treaties ? The necessity for the stipulation in both cases must be, because the process of one government and jurisdiction will not run into that of another; and separate and distinct jurisdiction, as has been
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. (7 U. S. Stat. 39.) And the 11th article fully recognises the jurisdiction of the Cherokee nation over the territory occupied hy them. It provides, that if any citizen of the United States shall go into *the p territory belonging to the Cherokees, and commit any crime upon, or *- trespass against, the person or property of any friendly Indian, which, if committed within the jurisdiction of any state, would be punishable by the laws of such state, shall be subject to the same punishment, and proceeded against in the same manner, as if the offence had been committed within the jurisdiction of the state. Here is an explicit admission, that the Cher.okee territory is not within the jurisdiction of any state. If it had been considered within the jurisdiction of Georgia, such a provision would not only be unnecessary but absurd. It is a provision looking to the punishment of a citizen of the United States, for some act done in a foreign country. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it, a foreign state, the Cherokee nation may assuredly, with the greatest propriety, be so considered.
The phraseology of the clause in the constitution, giving to congress the power to regulate commerce, is supposed to afford an argument against considering the Cherokees a foreign nation. The clause reads thus, “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” (Constitution, Art. 1, § 8.) The argument is, that if the Indian tribes are foreign nations, they would have been included, without being specially named, and being so named, imports something different from the previous term “ foreign nations.” This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion, that Indian tribes are not foreign nations. But the clause affords, irresistibly, the conclusion, that the Indian tribes are not there understood as included within the description of, the “several states ; ” or there could have been no fitness in immediately thereafter particularizing “ the Indian tribes.” It is generally understood, that every separate body of Indians is divided into bands or tribes, and forms a little community within the nation to which it belongs ; and as the nation has some particular symbol, by which it is distinguished from оthers, so each tribe has a badge from which it is denominated, and each tribe may have rights applicable to itself. Cases may arise, where the trade with a particular tribe may *require rH. to be regulated, and which might not have been embraced under the general description of the term nation, or it might at least have left the case somewhat doubtful; as the clause was intended to vest in congress the power to regulate all commercial intercourse, this phraseology was probably adopted to meet all possible cases ; and the provision would have been imperfect, if the term Indian tribes had been omitted. Congress could not then, have regulated the trade with any particular tribe that did not extend to the whole nation. Or, it may be, that the term tribe is here used as importing the same thing as that of nation, and adopted merely to avoid the repetition of the term nation : and the Indians are specially named, because there was a provision somewhat analogous in the confederation ;
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 confederation on this subject, appears to me, to show very satisfactorily, that so far as related to trade and commerce with the Indians, wherever found in tribes, whether within or without the limits of a state, was subject to the regulation of congress. • The provision in the confederation, Art. 9 (1 U. S. Stat. 7), is, that congress shall'have the power of regulating the trade and management of all affairs with the Indians, not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated. „ ^k® true import of this provision is certainly not very obvious : see -* Federalist, No. 42.- What were the, legislative rights intended to be embraced within the proviso, is left in great uncertainty. But whatever , . difficulty on that subject might have arisen, under the confederation, it is entirely removed, by the omission of the proviso in the present constitution ; thereby leaving this power entirely with congress, Avithout regard to any state right on the subject; and shoAving that the Indian tribes Avere considered as distinct communities, although within the limits of a state.
The provision, as contained in the confederation, may aid in illustrating what is' to be inferred from somе parts of the constitution (Art. 1, § 1, par. 3), as to the apportionment of representatives, and acts of congress in re•lation to the Indians, to wit, that they are divided into two distinct classes. One -composed of those who are considered members of the state Avithin which they reside, and the other not: the former embracing' the remnant of the tribes who had lost their distinctive character as a separate community, and had become subject to the laws of the states ; and the latter, such as still retained their original connection as tribes, and live together under their own laws, usages and customs, and, as such, are treated as a community independent of the state. No very important conclusion, I think, therefore, can be drawn from the use of the term “ tribe,” in this clause of the constitution, intended merely for commercial regulations. If considered as importing the same thing as the term “ nation,” it might have been adopted, to avoid the repetition of the Avord nation.
Other instances occur in the constitution, where different terms are used, importing the same thing. Thus, in the clause giving jurisdiction to this court, the term “ foreign states” is used, instead of “ foreign nations,” as in the clause relating to commerce. And again, in Art. 1, § 10, a still different phi'aseology is employed. “No state, without the consent of
As this Avas one of the earliest treaties made with the Indians, its provisions may serve to show in what light the Indian nations Avere viewed by-congress at that day. The territory of the DelaAvare nation Avas within the limits of the states of NeAV 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 Avith an opinion, that it is the design of the states to extirpate the Indians, and take pоssession 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 to make, that it Avas the design of the states to extirpate them, and take their lands, wras false. And the same recognition of their rights runs through all the treaties made with the Indian nations or tribes, from that day down to the present time. [*60
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
*67] The question touching the citizenship of an Oneida Indian came under the consideration of the supreme court of New *York in the case of Jackson v. Goodell,
“ 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 place'd 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 eo.urse of our colonial history, these Indians were considered dependent allies. The colonial authorities uniformly negotiated with them, and made and observed treaties
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 should we refuse to entertain jurisdiction of the case ? Such jurisdiction is expressly given to this court, in cases L arising under treaties. If the executive department does not think proper to enter into treaties or contracts with the Indian nations, no case with them can arise calling for judicial cognisance. But when such treaties are found, containing stipulations proper for judicial cognisance, I am unable to discover any reasons satisfying my mind that this court has not jurisdiction of the case.
The next inquiry is, whether such a case is made out in the bill, as to warrant this court in granting any relief ? I have 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
In the ease of Osborn v. United States Bank,
What the rights of property in the Cherokee nation are, "*may be discovered from the several treaties which have been made between the United States and that nation, between the years 1785 and 1819. It will be unnecessary to notice many of them. They all recognise, in the most unqualified manner, a right of property in this nation, to the occupancy, at least, of the lands in question. It is immaterial, whether this interest is a mere right of occupancy, or an absolute right of the soil. The complaint is for a violation, or threatened violation, of the possessory right. And this is a right, in the enjoyment of which they are entitled to protection, according to the doctrine of this court in the cases of Fletcher v. Peck,
Again, by the treaty of Holston, in 1791 (7 U. S. Stat. 39), the United States purchase a part of the territory of this nation, and a new boundary line is designated, and provision made for having it ascertained and marked. The mere act of purchasing and paying a consideration for these lands, is a recognition of the Indian right. In addition to which, the United States, by the seventh article, solemnly guaranty to the Cherokee nation, all their lands not ceded by that treaty. And by the eighth article, it is declared,, that any citizens of the United States, who shall settle upon any of the Cherokee lands, shall forfeit the protection of the United States ; and the ^. .. Cherokees may punish them or not as they shall please. *This treaty J was made soon after the adoption óf the present constitution. And in the last artiсle, it is declared, that it shall take effect, and be obligatory
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, 7 U. S. Stat. 62), the United States always recognising, in the fullest manner, the Indian right of possession: and in the treaty of the 8th of July, 1817, art, 5 (Ibid. 156), all former treaties are declared to be in full force; and the sanction of the United States is given to the proposition of a portion of the nation, to begin the establishment of fixed laws and a regular government; thereby recognising in the nation a political existence, capable of forming an*independent govern- pp ment separate and distinct from, and in no manner whatever under the *- jurisdiction of, the state of Georgia ; and no objection is known to have been made by that state. And again, in 1819 (7 U. S. Stat. 195), another treaty is made, sanctioning and carrying into effect the measures contemplated by the treaty of 1817; beginning with a recital that the greater part of the Cherokees have expressed an earnest desire to remain on this side of the Mississippi, and being desirous, in order to commence those measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them, of the 8th of July 1817, might, without further delay, be finally adjusted, have offered to make a further cession of land, &c. This cession is accepted, and various stipulations entered into, with a view to their civilization, and the establishment of a regular government, which has since been accomplished. And by the fifth article, it is stipulated, that all white people who have intruded, or who shall thereafter intrude, on the lands reserved for the Cherokees, shall be removed by the United States, and proceeded against according to the provisions of the act of 1802, entitled “an act to-regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers. ” (2 U. S. Stat. 139.) By this act, the boundary
It may be necessary here briefly to notice some of the provisions of this act of 1802, so far as it goes to protect the rights of property in the Indians ; for the purpose of seeing whether there has been any violation of those rights by the state of Georgia, which falls properly under j udicial cognisance. By this act, it is made an offence, punishable by fine and imprisonment, for any citizen, or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country allotted to the Indians, without a passport, or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any friendly *Indian, which would be punishable, J if committed within the jurisdiction of any state, against a citizen of the United States ; thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any state. The act further provides, that when property is taken or destroyed, the offender shall forfeit and pay twice the value of the property so taken or destroyed. And by the fifth section, it is declared, that if any citizen of the United States, or other pex-son, shall make a settlement on any lands belonging, ox-secured or guarantied, by treaty with the United States, to any Indian tribe; or shall survey or attempt to survey, sxxch lands, or designate any of the boundax-ies, by marking trees or otherwise ; such offender shall forfeit a sum not exceeding $1000 and suffer imprisonment not exceeding twelve months. This act contains various other provisions for the purpose of protecting the Indians in the free and uninterrupted enjoyment of their lands; and authority is given (§ 16) to employ the military force of the United States to apprehend all persons who shall be found in the Indian country, in violation of any of the px-ovisions of the act; and deliver them up to the civil axxthoi-ity, to be proceeded against in due coux-se of law.
It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the 19th section of this act, which declares, that nothing therein contained shall be construed to prevent any tx-ade or intercoux-se with the Indians, living on lands sux-rounded by settlements of citizens of the United States, and being within the ox-dinary 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 ax-e subject to the jurisdiction of that state. Such a construction makes the act inconsisteni with itself, and directly x-epugnant 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 ai-e 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 Geox-gia: and this was a ^ subsisting guarantee, under the ^treaty of 1791, when the act of -I 1802 was passed. It would require the most unequivocal language to authorize a construction so directly repxxgnant to these treaties. But this section admits of a plain and obvious interpretation, consistent with other parts of the act, and in harmony with these tx-eaties. The reference
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, cannot, in my judgment, admit of a doubt; and that some of the laws of Georgia set out in the bill are in violation [*75 of, and in conflict with, those treaties, and the act of 1802, is, to my mind, equally clear. But a majority of the court having refused the injunction, so that no relief whatever can be granted, it would be a fruitless inquiry for me to go at large into an examination of the extent to which relief might be granted by this court, according to my own view of the case. I, certainly, as before observed, do not claim, as belonging to the judiciary, the exercise of political power ; that belongs to another branch of the government. The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognisance, or a remedy is not to be had here.
The laws of Georgia, set out in the bill, if carried fully into operation, go the length of 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
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, and those upon all other unappropriated lands ‘ of the state, and for punishing persons who may be found trespassing on the mines.” The preamble to this act asserts the title to these mines to belong to the state of Georgia ; and by its provisions, $20,000 are appropriated, and placed at the disposal of the governor, to enable him to take possession of those mines ; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia, at hard labor, for the Cherokee Indians to work these mines. And the bill alleges, that under the laws of the state in relation to the mines, the governor has stationed at the mines an armed force, who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. Thеse can be considered in no other light than as acts of trespass ; and may be treated as acts of the state, and not of the individuals employed as the agents. Whoever authorizes or commands an act to be done, may be considered a principal, and held responsible, if he can be made a party to a suit; as the state of Georgia may undoubtedly be. It is not perceived, on what ground, the state can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the state has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, “ as soon as it can be done, peaceably, and upon reasonable terms.” But until this is done, the state can have no claim to the lands.
The very compact is a recognition by the state of a subsisting Indian right; and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done “ peaceably, and upon reasonable terms ;” and whatever complaints the state of Georgia may have against the United States for the 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 authorized to be appointed to enter upon the Cherokee territory, and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on,_ with the lots on which such improvements may stand, and even excepting from such reservation, improvements recently made near the
These instances are sufiicient to show a direct and palpable infringment of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. These treaties, and this law, are declared by the constitution to be the supreme law of the land ; it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire, whether the execution of them can bo restrained by injunction according to the doctrine and practice of courts of equity.
According to the view which I have already taken of the case, I must consider the question of right as settled in 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. is a prohibitory writ, to restrain a party from ^ doing a wrong or injury to the rights of another. It is a beneficial
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 of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state, to restrain him from doing an official act еnjoined by statute — the state not being made a party. But even this was not deemed sufficient to deny the injunction ; the court considered, that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges, and they say, if the state could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction ; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the 11th amendment of the constitution ; the complainants being mere individuals, and not a sovereign state. But according to my view of the present case, the state of Georgia is properly made a party defendant; the complainants being a foreign state. The laws of the state of Georgia in this case go as fully to the total destruction of the complainants’ rights, as did the law of Ohio to the destruction of the rights of the bank in that state ; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.
It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary, to give full effect and operation to the injunction ; and it is immaterial, where the subject-matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court, in the case of Massie v. Watts,
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
Motion denied.