Worcester v. Georgia

JANUARY TERM 5.15 A. Worcester, State Plaintiff The Samuel in Error v. Georgia. “ county A superior writ judges of error the was issued to the court for the supreme Georgia,” commanding Gwinnett in 6tale of them send to the the States, superior- proceedings court the of the United íecord and in the said Gwinnett, county and Georgia, plaintiff, court of the between the state of Worcester, defendant, indjctment A. record Samuel on an in that The court.. returned, court, and by the court of Gwinnett was the certified clerk of the with, by was and an- also authenticated the seal of the court. It was returned to, form, by being one regalar signed nexed a error issued in writ of the citation court, supreme the justices'of governor on the and associate and served the days attorney-general thirty the state more than before the commencement of the of error was term to which the writ returnable.

By .act, judicial prescribes the so proceeding, court: The far as the mode of 1797, appears' literally,pursued. February been In rule was made on court, subject, following by words: it is-ordered the that the clerk directed, court to the writ of error shall make return of record, ail by.transmitting copy the same a true and of proceedings the in.' same, the under bis hand the and seal of the court.” judge signature This done. But has not has been the been added to require require that of the clerk. The does not it. The does law rule it. plaintiff supreme was in county error indicted court for the of Gwin of Georgia, residing, July “for 1831, nett in state on the 35th part in that by the Cherokee nation attached laws of the state Georgia to that permit county, governor without a license or or from it, grant having- one and authorised without taken the support oath to and de demean, constitution and Of fend the himself, laws the state of Georgia, uprightly and thereof, as a citizen contrary to the laws of the said To state.” was, pleaded 1831, indictment he that he July on the 15th in the Cherokee nation, jurisdiction out of the county; the court of Gwinnett he that was a Vermont, citizen of and entered the Cherokee nation as a missionary under authority president of the United and has not required' it, by permission him to leave and approval of the Cherokee engaged nation he preaching gospel: Georgia ought prosecution, not maintain the as several treaties had been entered into by nation, the United States Cherokee which that nation was nation, acknowledged to be sovereign territory occupied and which the guarantied them was States; to them the United that the laws indicted, under which plaintiff repugnant in error are treaties, void, repugnant unconstitutional also that act congress of March trade regulate entitled an act to and inter “ with, course T,he superior the Indian tribes. c'ourt overruled the Gwinnett “ plea, plaintiff convicted, error was tried and and sentenced to hard Held, labour in penitentiary years.” for four that this was case in which supreme error, jurisdiction by of the United had court writ of COURT. SUPREME The State óf {Worcester judicial section of the act to establish of United courts twenty-fifth States” in 1789. passed indictment this case draw in treaties plea question validity rnade the United Stales with the con- Indians: if so, struction is drawn in been, and the decision has if not certainly question; “ (cid:127)against against right, privilege the or validity, exemption specially set and claimed under them.” also into up draw the They question validity (cid:127)of a Georgia, of the ground statute state of on the of its being repugnant to the treaties and of is in constitution, the United and the decision laws favour of its validity.” is It too the act of congress, clear court controversy, by given it the and of constituted, course on of imposed it the power, duty exercising jurisdiction in this case. The according to judiciary record,- the act and the rule and regularly of the court, before the practice court. “ The legislature act of the of 22d December 1830, entitled passed act to the exercise of and assumed all prevent under power arbitrary by persons, ,of pretext the Cherokee &e. enacts Indians,” that “all white authority residing persons, the limits of the Cherokee within nation on of the 1st day March or next, at without a license or from his anytime thereafter, permit governor, the such agent or from as his governor excellency excellency grant shall authorise to such or who license, and shall permit not have taken high guilty hereinafter shall be oath of required, misdemeanour, and shall be thereof, conviction confinement punished upon By penitentiary term labour, at hard for a not than four The less eleventh years.” section “ governor, authorises the should deem it he for the necessary of protection tire of mines, or laws in enforcement force within the nation, “ organise guard,” to &c. The raise and thirteenth section enacts, that the of guard said or member and are them, any be, they authorised hereby legally charged tp arrest and any person in a empowered detected vio- to as soon as state, lation of the of laws convey, practicable, per- justice son so of judge justice attested, peace, before superior, according of this dealt intetior court to'be to law.” The extra- legislature being limited in its action territorial to its own every citi- power of this passage jurisdiction act is an assertion'of subjects, zens or the vety over rights and and of tire nation, the Cherokee thereto- powers consequent continent of gave America that discovery title to pails principle, subjects, or whose it was government against whose by made, authority by might be . which title governments, all other consummated by pos- European the interest all all because was acknowledged session,” Europeans, by as its gave making inevitable acknowledge to the nation to it; discovery, making settlements right acquiring the on the sole soil and consequence, right exclusive which shut out the competition was an it. It principle; not one annul the agreed who had which could among it; previous those right agreed regulated given to it. It had not dis- who rights of by those rights but could not affect the discoverers, those among European covery or as aboriginal as either virtue occupants occupants, already possession, gave right before the of man. It made exclusive of a memory discovery right tight on a not found that denial but did pos- purchase, sessor to sell. each and the natives determined Therelation between Europeans this pre- which asserted could maintain case particular TERM 1832. The State particular place. The United States succeeded privilege in the emptive Britain, political, attempt, both but no territorial so of Great the claims far known, So they merely them. far as enlarge been made existed as is has. only of the claims other Euro- theory, in their nature exclusive or were character, remain nations, they origihal retain their pean still dormant. fact, they practically exerted, they exist in far understood So one, parties, and admitted by both are asserted the other. America, colonies planting the king after Soon Great Britain determined subjects, companies purpose of his who associated for the granted charters effect, and .enriching into of the crown carrying views themselves. possession part before was taken of charters was made The first of these soil, convey They purport generally to from the Atlantic country. occupied by nations, soil was numerous Warlike to the South Sea. This possessions. extravagant defend their equally willing and able to The. coast, idea, compa- made on the feeble settlements sea or the absurd that the acquired legitimate they made, govern them to were nies whom sea, did sea to enter the mind of occupy the lands from people, which, convey the title according understood to They man. well America, European respecting sovereigns might rightfully common law exclusive convey, purchasing more. This was the such no lands willing to sell. crown could not be the natives were understood to claim, nor was it so understood. grant, crown did affect what the example, is, history from the first settlement furnishes no Certain it our crown, attempt, part of the to interfere any ort with the country, the our keep agents than to Indians, foreign the affairs of the farther out internal otherwise, who, powers, might foreign or seduce them as traders into alliances. sell, king purchased they willing price they their lands were to at a The when pur- take; never coerced a surrender of He also willing but them. were to subsidies; dependence by never intruded into and but the chased their alliance affairs, government, self as their so far re- or interfered with interior their only. spected themselves treaty Hopewell acknowledges the Cherokees to be of the third article The America, power. protection of the United States and of no other tréáties, stipulation generally. is found in introduced into Indian ‘It was This Britain; be in those with may probably found other treaties Great their with of their connexion European to the nature powers. origin may Its be traced meaning is discerned in their relative true situ- powers; those and its with ation. America, European respecting sovereigns, their claims in genera! The law Indians, degree, particular potentate, great in a limited the intercourse right acknowledged of domain This was whose' was others. ultimate changed in peace. in war. general things time of It was sometimes was, chiefly that consequence supplies their irom na- The that were derived tion, Goods, comfort, indispensable their their trade confined it. shape presents, received ‘fromthe same hand. What was of still interposed importance, government restrain strong more hand of was to. country, disorderly their fromencroach- and licentious intrusions into lands, on attend- ments their and from those of violence which were often acts only by reciprocal protection, The what pe/ceived murder. Indians ed punish on them. aggressions beneficial to engagement was themselves —an lands, persons. practically no claim no over their It involved dominion to their SUPREME COURT. 518 v. The of Georgia.] State (he it bound nation to the British crown, a claiming merely dependent ally, friend and neighbour,' of a receiving protection powerful advanta- involving without a ges of that surrender of their protection, national character. meaning of the is is the true This stipulation, the sense in undoubtedly government, Neither British the, made. nor was the Cherokees, ever un- derstood it otherwise. into with same entered States, is stipulation The to be undoubtedly manner. in the same receive the construed They nation into their The acknowledge Cherokees favour and protection. imder themselves United States, of the and of no Protection does protection power. the destruction The protected. manner in imply stipu- government, understood American lation was the lan- explained by first our guage president. and acts of “ grounds.” hunting to the words Hunting So with time respect at that of the Indians, arid-their land occupation was more principal for fhat used pur- It than for other. could however, be pose not, supposed, inten- restricting the use of tion, full the lands existed reserved. they be a it could To the United matter no States, concern, whether their hunting grounds,'or devoted to whole whether an occasional territory village, corn field gave and an occasional some variety interrupted, scene. had used in terms been their treaties with had Britain, These Great never been never right misunderstood. had been hey supposed imply government British take or their to interfere their go- with internal lands, vernment. articles The sixth -and seventh for the citizens stipulate punishment either commit who offences on or against country, may the citizens of the Jo, other. The inference be drawn from them that the only is, United States considered the Cherokees as' a nation. The ninth article in these vvords: for the benefit and comfort Indians, injuries for the on citizens or prevention oppressions part congress Indians, and ex the sole assembled, regulating clusive all their trade managing the Indians, and affairs, “managing think To construe the their proper.” expression a surrender of into self would be affairs,” perversion uni meaning, and from the construction which necessary departure The great subject them. trade. of the article is the Indian formly put gave influence it made it desirable that it. com congress should possess brought, missioners “ forward the their motive claim, was, profession' injuries the benefit and comfort of the and the Indians, prevention op p This regulation true, as of their and as trade, respects ressians.” regulation of the all affairs with cannot connected their but be respects trade; as the of all management true, their affairs.’ most respects The' of important cession of and against these, lands, the their on intruders them. securlty Is. that surrendering credible, could considered as have themselves to they the right States, the their future and the terms on cessions, which dictate should their submission to the violence of they made; compel disorderly and licentious It intruders? that could inconceivable have is equally they a themselves, thus into an on another and article, supposed by phrase slipped interesting subject, more self'go right have of the of divested themselves subjects vernment on not connected could not be with Such measure trade. a TERM JANÜARY of v. The State “ « oppress- and injuries comfort,” prevention of or for the benefit and- for their spirit 6f this and the with be inconsistent a would construction ion.” Such recognise right the articles which treaties; especially of those subsequent all convert á hostilities, It would make war. and to to declare Cherokees political existence one annihilating the treaty covertly peace into an.act intended, openly have been it would such a result been parties. the Had avowed. in a sense capable being used which could treaty few terms contains a

This time, practi- with the apd which inconsistent at the been intended have them; put essential articles always been on has but cal construction which capable peace maintaining the relations of as treat the Cherokees a.nation and war; between them the United States. the boundaries and ascertain -and Holston, 1791; July explicitly treaty negotiated with Cherokees Cherokees, and right their recognising the national character of self- lands; duty protection; assuming their guarantying government; thus protection; for faith the United States that has pledging course and renewed, is now in full force. frequently specific protection have been added several pledges, pledge general To Some these restrain the by Indians. citizens of the valuable deemed country, encroachments on the Cherokee from Drovide punishment of intruders. contemplate territory as Indian of the United States and laws The treaties states;, provide all that intercourse separated that completely (cid:127) by exclusively government of the carried on union. shall be with them distinct, independent as always political been considered nations had The Indian ' communities, retaining original rights, undisputed possess- their natural as soil, immemorial; exception single from time ors of the with that im- powér, posed them from intercourse by which excluded with irresistible particp- European potentate discoverer of coast of the first other than potentates European those and this was lar claimed: region restriction “ themselves, nation,” very as Indians. on the term imposed well on “ them, applied people means distinct from generally so others.” The constitution, made, already by declaring treaties Well as those to be .as made, land, supreme adopted pre- be the has law and sanctioned the nations, and, consequently, vious treaties the Indian admits with their rank “ powers capable making treaties. treaty” who are The words among those language, diplomatic own selected in are of our our nation” words ourselves, by having proceedings, each a legislative definite and well under- Indians,' applied We have them to meaning. applied we stood them They applied, of the earth. natións to all in the same sense. herself, furnished conclusive opinions evidence her former .that states, subject concurred those entertained her sister government of United States. legislature Vaiious acts of her have been argument, cited including year contract of cession inmade prove acquiescence . tending her in the universal conviction that the In- possessed right occupied, they nations lands until dian that a.full consent; should extinguished United States their separated territory from that whose within chartered limits reside, line, boundary that, might established treaties: witlrin their boundary, they possessed rights with no state could interfere: the whole regulating the intercourse with them vested United States. SUPREME COURT. 520 Georgia.] v. The of [Worcester State original right, to the Ia opposition possessed by undisputed of occupants recognition to this right, of which every country, evidenced our his- change through in which we have are tory every passed, the charters placed of a granted the monarch region, distant and distinct parcelling aout terri- of others, in whom he could not remove, tory possession and did not attempt the cession made remove, and of his claims, The peace. treaty at the things state of. and all time, actual since, these history explain charters; at the king Britain, and the of Great could treaty peace, cede what be- only These asserted longed to his crown. titles can newly derive no aid from the in Indian extending so often treaties, articles repeated them, first, the pro- and Britain, afterwards that of the Great tection of States. United These arti- others,,recognising their are associated with title to self-government. cles The recognises treaties with them fact of and very repeated it; the settled doctrine is, nations that weaker of the does law power surrender its independ- .self-government, associating light ence —rits with a stronger, taking and in order to for its A weak its providé protection. safety, may place itself one more without stripping itself of the right powerful, under protection ceasing to be a state. government, and of this are kind Examples want- “ and ing states,” in do not Tributary Vattel, feudatory says Europe. thereby and so sovereign long as self-government independent states, cease to and in leit sovereign and administiation of the authority state.” independent one state holding more than considered its At day, present guarantee and more under of one or allies. self-government protection is a distinct occupying then, nation, its community, The own territory, Georgia described, ,of boundaries in which the accurately with laws can have citizens of Georgia force, which have no right no to enter, but with Cherokees or in themselves, assent of the with treaties, conformity The congress. whole intercourse the acts of between the with United States laws, our constitution and government is, this vested nation, United States. under error was act of the which the plaintiff prosecuted, The the judgment void, and is consequently nullity. legislatuie Georgia of the interfere relations acts with the esta- forcibly regulation States and the Cherokee the United nation, between blished according settled of our to the is committed principles constitution, which, of the union. exclusively in a treaties, with succession of are in direct hostility repeated years, They Georgia; the Cherokee out the separates mark boundary country pledge to them all the land within their the faith guaranty boundary; solemnly trespassing on recog- States to restrain their citizens from it; of the pre-existing govern the nation to itself. nise congress regulating the acts intercourse are in equal hostility They to the treaties. effect giving residing error, and abduction who was forcible seizure plaintiff the United nation, president permission, by authority magistrate chief violation the acts which authorise the also a exercise authority. in error? We think they considerations avail the these Will powerful plaintiff guardianship carried while under He seized and away, will. forcibly taking he resided and it under in which guarantying the treaties country performing, protection States. He seized while TERM 1832. y. The State of chief magistrate those union, sanction duties humane congress had recommended. He was policy adopted" by tried, apprehended, of a condemned, under colour law which repugnant shown to be to constitution, treaties of the United judgment, laws, .the States. Had a objections, liable to the same been rendered for none would property, question jurisdiction the of this court. Xt be less judgment cannot clear the when affects disgraceful inflicts personal if could liberty,and punishment; punishment disgrace when on innocence. in error is not less plaintiff inflicted inter- ested'in the of this law unconstitutional than if operation it affected his pro- He is not less perty. entitled to the of tile protection constitution, laws, treaties of country. hi3.

THIS was a writ of error to the court for the superior county of Gwinnett, in the staté of Georgia.

On the 22d December legislature 1S30, act: Georgia passed following

“An-act prevent exercise assumed arbitrary- all ol power, by persons, from pretext authority laws, Cherokee Indians and their and to white prevent per- of the sons from within chartered limits óf residing part .Indians, and to Cherokee provide Georgia, occupied by mines, of the and to protection for enforce the gold guard state within the aforesaid laws territory. “ the senate and house of Be it enacted by representatives met, and it assembly state of hereby Georgia general same, that, after the 1st authority enacted day by not be lavvful or 1831, it shall any person for per- of February from or said authority Chero- pretence colour sons, under chiefs' or of said headmen, tribe, or as warriors tribe, kee of any or means council cause any assembling procure body said Indians or or other legislative pretended them, for the purpose others legislating (or among living And whatever). persons for purpose offending other any shall be of a of this section guilty high against provisions therefor, and, on. indictment misdemeanour, subject labour confinement at hard conviction, shall be-punished of four years. for the space in the penitentiary authority afore- be enacted it further And Sec. 2. aforesaid, not be lawful for it the time said, that, after authority under pretext or any person persons, or chiefs, war- headmen tribe, or as representatives', Cherokee council, aas tribe, assembly, or to meet assemble of said riors VI. —3 Q Vol. SUPREME COURT. v. The State of

convention, or in making any capacity, purpose laws, or orders for said tribe. persons And regulations section, shall offfhis provisions guilty offending against and, indictment, misdemeanour, to an high subject on thereof, shall conviction imprisonment undergo hard at labour for the of four penitentiary space years. afore- “Sec. be it further enacted authority 'And said, lawful for that, aforesaid, .the time after shall not or any under -colour or person authority persons, tribe, any or its laws or- hold any regulations, whatever, court or tribunal de- for the purpose hearing causes, either criminal; civil or termining or give judg- causes, issue, ment in issue, such or cause to any process tribe. And all said against person property persons shall be offending against provisions this.section and, of a misdemeanour, indictment, guilty high subject thereof, conviction shall be imprisoned penitentiary at hard labour for the of four space years. 4.

“Sec. And be'it further enacted afore- by authority said, that, after the time aforesaid, it shall for not be lawful or as any a ministerial person officer, persons, or in any to execute any command or capacity, precept, process issued or in tribunal by any-eourt tribe, Cherokee on the persons or of said tribe. And all property any persons offending provisions section, this against be shall of a tres- guilty to indictment, and, on pass, subject thereof, conviction shall be fine.and by punished imprisonment or in jail than penitentiary, four at the longer years; discretion of the court. . ’ n ‘.Sec.5. And be it further enacted by afore- authority said, that, after the time aforesaid, it shall not be lawful for or any person confiscate, or persons to confiscate, attempt otherwise or to cause a forfeiture of the or estate of property Indian of said any tribe, of his consequence him- enrolling self for family or emigration, enrol for offering emigra- tion, or other act any Indian, of said in furtherance of his intention to And emigrate. persons offending against pro- of this shall be visions section misdemeanour, guilty high and, on conviction, shall imprisonment undergo at penitentiary hard labour for the of four space years. JANUARY TERMi 1832. .523 v. The State be it further enacted Sec. And aforesaid, authority “ of this act shall noné be so provisions construed as tribe, or headmen, said chiefs prevent other representa tives, or any commissioner, on the meeting agent part this state or the United purpose any whatever.

“ Sec. 7. it further And be enacted aforesaid, authority that all white the limits of Chero- persons residiilg'within nation, kee 1st next, on'the of Ma!rch or day at v time thereafter, without license or from his permit excellency his or from such governor, agent excellency gov- ernor shall authorise to such or license, and who grant permit shall not have taken the oath hereinafter required, of a misdemeanour, and, upon thereof, conviction guilty high shall be confinement-to the penitentiary at hard punished than labour for a term not less four that the years: provided, section shall so construed as to provisions extend authorised or agent agents or of or to who any person persons may rent those which have been aban- improvements doned Indians who west of the emigrated Mississippi: contained this section shall be so provided, construed nothing as to females, extend to white and all male children under twenty-one years age. further enacted Sec. 8.. And be authority aforesaid, citizens of the

that all-white state of persons, who a license from his have procured writing excellency or from such as his excellency governor, agent governor license, to such shall authorise reside within permit grant nation, and limits of who have taken the A..B., do “I, oath, affirm, swear solemnly following viz. (or I will the case defend the consti support and may be) tution of the demean láws uprightly the God,” be, as so me shall thereof, myself citizen help the declared, same are and free from exempt operation hereby the act. seventh section this) his enacted, Sec. it further that the 9. excellency And be “ to to be, is licenses aqd hereby, grant he authorized governor nation, within the limits Cherokee reside according act. section of this eighth provisions .by 10. enacted afore- authority Sec. And be further SUPREME COURT. .Georgia.] State of v. The' said, that no shall collect claim toll from person any any or. or toll for au- any by person, passing turnpike gate bridge, or law chief tribe, act of the or any any thority or headman men of the same. or

“Sec. 11. And be it further enacted afore- authority said, be, that his and he excellency hereby, is governor - should he deem it for the empowered, necessary, pro either mines, or tection for enforcement the laws to,raise nation, within the Cherokee and organize guard, fofce to be foot, mounted, on or as occasion employed may require, not consist shall more than whie! sixty persons, be under the shall command of the or commissioner guard mines, protect appointed governor, agent to dismiss member of said service guard, from the. rendered, on due disorderly services for paying for wages conduct, and make to fill the vacancies appointments occasion- ed such dismissal. And be

“Sec. it further enaeted afore authority said,' that each who said shall person may belong guard, his for compensation receive at the rate of fifteen dollars per foot, on mbnth when and at the rate of dollars twenty per mounted, for when month that month such every person service; and, event, in actual the com engaged to, die, or herein missioner referred should or agent, resign, duties him, fail herein his perform excel required authorised lency hereby governor required ap to, stead, fit in his some other and proper point, person of1said and the command commissioner or guard; hav agent, command aforesaid, ing guard the better thereof, shall discipline shall appoint three who sergeants, the rate at receive dollars month while twenty per foot, month, serving twenty-five dollars when per mounted, whilst in actual compensation service.. “ Sec. 13. And be it further enacted afore- authority, said, them, merriber of guard, be, said and they are hereby, authorised and empowered to arrest any person with,-or in, legally charged detected violation of of this state, laws soon as' convey, practicable, so arrested person before a justice peace, judge superior dealt. justice inferior court of this 1832. JANUARY TERM 525 Georgia.] v. The State of [Worcester and law; and the.pay with said support according guard the fund already out of for the appropriated provided pro- mines.” tection of gold on the 19th December Georgia, legislature

.The act: passed following within the An act to add chartered territory limits lying

“ and of- occupancy now Cherokee In- Carroll, Kalb, Gwinnett, the counties of De dians, Hall, and Habersham, and to this extend laws of state over the same,, to annul laws and made and ordinances Indians, and nation of provide of offi- compensation in said cers and to serving process territory, legal regulate and to the ninth Indians, section of testimony the act repeal of 1828 upon subject. 1. Sec. Beit enacted and the senate house repre- “ of the state of met,

sentatives and assembly Georgia general it is enacted hereby same, that fr.om authority act, after all that part unlocated passing within limits of this which lies territory between the Alabama line and the old from the path Buzzard leading the Chattahoochee, Roost on on the Sally Hughes’s, High- Pelet’s, on river; thence to Thomas road; the old federal tower be, thence said road to line Alabarda and the same is to, and shall become hereby part of, added the county Carroll. And be enacted, Sec. 2. it further that all said part

“ north last line, mentioned being territory lying south'of the road ferry, Charles Gait’s running river, Chattahoochee Roe’s, to Dick it intersects to where aforesaid, be, to, and the same is added path hereby of, become part of De Kalb. county And enacted, 3. be it Sec. that all that part, further “ said mentioned and south line, north last territory lying creek; line at the thence mouth commencing Baldridge’s source; said creek to the federal from thence to where up road crosses thence road to the Ten- with said Hightower.; line, be, nessee the same added and shall to, hereby become of, the part Gwinnett. county Sec. And be enacted, it further that all part

said territory line, north said last mentioned south lying, COURT. SUPREME v. The State of

of a to commence on river, Chestatee at the mouth line creek; thence said creek to Yoholo of the Blue up top to the watérs of down river; thence head thence ridge; Notley be, line of river and.the same boundary said , to, of, and of added shall hereby part county become Hall. enacted, Sec. 5. be of said And it further that all that part

“ north within the line, of said last mentionfed territory lying state, be, of and to, limits this the same is added hereby of, shall become 'the part of Habersham. county “(cid:127) be Sec. And it further enacted, 6. laws, both civil all the criminal, of this state, be, and the ex- are hereby same tended over of all said portions territory, respectively; same, shall, within the after the persons whatever,"'residing of 1st of day next, June be liable to subject operation laws, said in the same state,‘or of other citizens .manner of said counties, the citizens all writs respectively; and. whatever, issued the courts or officers said processes by courts, over, shall on, extend of terri- operate portions hereby added tory same, respectively. “ S.ec. 7. And be it enacted, further that after the 1st day next, ordinances, laws, June orders and regulations, any whatever, made, enacted, or kind passed by Cherokee Indians, either council inor other what- general any way or ever, by any whatever of said authority tribe, be, and to be,, declared void, same null and hereby of no effect same existed; as if the had never and in all indictment cases.of suits, it shall be for or civil lawful the defendant to justify laws, ordinances, under said any orders or nor regulations; courts shall the same to permit given trial suit any evidence whatever. 8. be it enacted, Sec. And further that it shall not be lawful “ body persons, for or any person by. arbitrary or power ride, ordinance, virtue law or any pretended custom of said natipn, .threats, to prevent by menaces or means, or Indian of endeavour prevent, any nation, said re- within the chartered limits of this siding from enrolling anas or emigrant, from or/actually emigrating said removing nation; nor it be shall for lawful or any person body per- sons, or by arbitrary rule, any virtue pretended 1832. TERM The Stale nation, to in any punish, said or custom ordinance, law or or property, molest either manner, person or to Indian, for his enrolling or of any privileges abridge rights or or for intending emigrating her name an emigrant, or nation. said emigrate, or enacted, that body any person be it further 9. And “Sec. foregoing provisions' offending against persons misdemeanour, in- of a

section, subject guilty high confinement shall be dictment, and on conviction punished state, or of this confine- county common any jail fop a term not exceed- at hard labour penitentiary, ment discretion of the court. four at the years, ing enacted, that shall not be be it further Sec. And or hody persons, arbitrary power, lawful any person rule, ordinance, law or cus- colour pretended offer or deter nation, said prevent, tom of prevent of said headman, nation, chief or warrior Indian residing from of or within the chartered limits selling ceding States, for the use of the United whole or any or or to offer to of said territory, prevent part prevent, any or warrior of said Indian, headman, nation, chief as residing council or in aforesaid, treaty commissioner any meeting United States, for or commissioners on part any whatever. purpose enacted, be it further

“Sec. And or any person body offending against provisions persons foregoing misdemeanour, of a sections, shall be subject guilty high indictment, be confined at hard on convictio'n shall labour and. for not less than four nor than six penitentiary longer at the discretion of the court.

years, “ be it further enacted, 12. And that it shall be law- Sec. force, ful or body for or any persons, by arbitrary person ordinances, law or rules, custom colour any pretended Indian as nation, said the life afore- any to také residing said, attempting emigrate"; for as emigrant; enlisting aforesaid, or cede, as the whole any or ceding, attempting meet, or Said or territory; attempting meeting part or com- council, aforesaid, or in commissioner treaty any offend- aforesaid; missioners and any persons person body section, of this shall be provisions guilty ing against SUPREME COURT. 52 8 v. The State of [Woreesíer murder, to indictment, and, on subject conviction, shall suffer death by hanging. “ Sec. 13. And be further enacted, that, should any offences be committed under colour foregoing pretended any ordinances, rules, custom or law said nation, all persons therein, either as individuals asor executive, acting pretended officers, ministerial be judicial deemed and considered principals, subject penalties pains hereinbe- fore described. “ Sec. 14. And be it further enacted, that for all demands come within the may of a jurisdiction court, magistrate’s suit be for the same in nearest may brought district of the to which the annexed; county territory hereby and all offi- cers on any any serving legal process person living any portion herein named, shall entitled to territory re- the sum of cover five cents for he ride every may mile to serve same, after of the said present limits crossing counties, in addition the fees allowed already case bylaw; of the said officers should be resisted in execution of any issued court or by any process legal magistrate, justice court, or inferior court' of superior judge of said authorised call out counties, he hereby sufficient num- to aid militia said counties protect ber of the him in the of this duty. execution 15, And be enacted, it further Sec. that-no Indian or de- Indian, of any scendant within the Creek residing or Cherokee Indians, shall deemed witness competent any. nations a white state’ to which .person court of this be a party, within white resides the said nation.” except person such In September county grand jurors in the Gwinnett state of presented superior Georgia, of the county court indictment: following “ Gwinnett sworn, county: Georgia, jurors, grand —The Gwinnett, selected for in chosen and county citizens name and of the behalf ac Georgia, and charge Butler, Worcester, Trott, cuse Samuel. A. Elizur James - Eaton, "Samuel Austin Surry and Edward Mays, Copeland, D. ‘ white said with the Losure, offence persons‘of county, within the limits the Cherokee nation without residing Wor- license:’ that the said Butler, For Elizur A. Samuel TERM State v. The Eaton, Austin Cope- Trott, Mays, Samuel cester, Surry James aforesaid, on Losure, white persons, D. land and Edward of the Chero- in that 1831, part did reside 15th day July county, to the said said state the laws of kee nation attached or license in without aforesaid, permit and the county or from any agent said his excelléncy governor aforesaid grant authorised hi's excellency governor the oath to taken license, and without having such or permit laws of the state of and constitution and defend support; as citizens there- to demean themselves and uprightly and state, the order, of, peace of said good to the laws contrary ” thereof. dignity error To in indictment, pleaded specially, this plaintiff as follows: Worcester, per- And Samuel A. in his own proper the said court further son, that this not to take comes and ought says, because, he aforesaid, and action prosecution cognizance was, he the year the 15th that, day July says, nation; that is, and in the still a resident Cherokee and them, crime, crimes, or each were com- said supposed mitted, all, if at Echota, committed at the town of New court, said out of the of this arid nation, Cherokee jurisdiction within the Gwinnett, elsewhere jurisdic- county saith, he is defendant that tion this court. And this citi- Vermont, United States zen of the state of one of the of Ame- rica, and he entered the aforesaid nation of a of the American authorised capacity duly missionary Missions, Board of Commissioners under the for au- Foreign since thority president was, he been him to it: that at the time leave required arrest, his the Cherokee gospel preaching engaged into Indians, and in the sacred their lan- translating Scriptures of the said Cherokee with the permission approval guage, nation, in accordance with humane policy for the im- Stales, civilization Indians; there, that his residence provement is the in the aforesaid residence indictment: charged purpose, saith, defendant that this further prosecution saith, n because, maintain, he not to have ought Georgia have, time, treaties several from time entered VI.—3 Von. R SUPREME

530 COURT. v. The State of [Worcester into of between the States and nation -United the Cherokee Indians, to wit: at the 28th of on November Hopewell, day 1785; on 2d Holston, 1791; at of day at Philadel July 2d 1794; day on the 26th June at on the day Tellico, phia, Tellico, 1804; Of October on the 24th 1798; at of October day . Tellico, Tellico, on 1805; at on the 25th of October at day 1805; of October at on'the 7th 27th day city, ’Washington 1805; 22d at on the day day January Washington city, the 14th House, Council on 1816; March at the Chickasaw 8th 1816; at the Cherokee on the day September Agency, and at 27th day July day on the city, Washington all which treaties 1819: have been ratified February duly America; and, senate of the United States of which by by United States America the. treaties the said acknowledge nation, to be a Cherokee nation authorised sovereign govern themselves, and all who have settled within persons by free from interference territory, any right legislative America, several states United composing and, reference acts done within their own territory; treaties, the whole of which now territory occupied nation, on the east of Mississippi, them; all of which aré treaties solemnly guarantied existing treaties, full force. these at day, By treaties afore Holston, the treaties Hopewell particularly said lie without territory jurisdiction acknowledged States; states the union of the United of the'several composing that the and, it is citizens thereby specially stipulated, not. enter the aforesaid States shall United even territory, state, or visit, from the without passport governor one authorised thereto duly by'the president some at States: all of will more fully large reference this de to the aforesaid And treaties. appear, saith, that the bill indict several acts charged fendant done, done, all, or omitted to be if within the ment, were at nation, so to the said territory recognized belonging said them, held under .the so, aforesaid, guarantee acts, the defendant is not amenable that, for those States: said nor to the courts laws Georgia, jurisdiction profess state; laws state of that-the counties add several said territory adjacent the said ter- the laws of state, and to.extend over said Georgia TERM of Georgia.] y. State same; and, particular, persons ritory, inhabiting this defendant act on this indictment grounded, against prevent the exercise of an act to wit: an act entitled ‘ by pretext assumed and persons, power, arbitrary laws, and Indians, and their from authority within part white prevent residing persons the Cherokee In- occupied chartered limits of the for dians, protection and to provide guard gold of the state within the laws aforesaid mines, and to enforce the treaties; Which, to the aforesaid ac- are territory,’ repugnant States, to the constitution of the United compose cording land; of the and that these part of the law laws of supreme Unconstitutional, are, void, and no therefore, effect: Georgia are also the said laws and void, Georgia unconstitutional because various obligation contracts impair they between, the aforesaid Cherokee nation formed and and the America, also, above recited: that the said void, and unconstitutional because laws they said Georgia with, and control the interfere and inter- attempt regulate nation, said Cherokee which, course with the the said constitution, the United exclusively belongs congress States; to' the and because the said laws are statute repugnant on March the-day passed trade and intercourse act to with the regulate entitled ‘ tribes, that, and to and frontiers:’ preserve Indian peace no therefore, to cause this defendant this court jurisdiction indictment, bill of to the said make further or other answer this defendant for said or further to and sup- try punish in the bill of indictment, offences offence posed alleged therefore, this defendant and, prays judgment of them: bound answer to said in- be held further whether shall he dictment.” and the court; jurisdiction

This overruled plea was sustained Gwinnett court of county of the superior court. judgment “ arraigned, pleaded guilty:” defendant was then of September 1831, trial on the for 15th the case came on indictment guilty. defendants when the found jury sentence on parties the court On the same day pronounced convicted, so follows: SUPREME COURT. v. The State of B.

“The State v. F. Indictment others. Thompson Verdict, license. the Cherokee nation without residing ” Guilty; “ Butler, The State v. Elizur Samuel A. Worcester others. Indictment for Cherokee nation with- residing Verdict, out license. Guilty.” defendants, cases, in both of the kept above can in close until the sheriff of this custody by county, state, and transported penitentiary keeper them, thereof directed to them, receive each hereby his them, them, into at hard custody, keep each n labour in said four for and penitentiary, term during years.”

A of error writ of the plain- issued on the application error, tiff in dn 27th 1831, whi.ch, of October . thereon, was following proceedings returned to this court. “United States of America, ss.—The of the United president States to the honourable of the for court superior judges Gwinnett, of in county the state of greeting: Georgia, “ in the Because record and as also in the rendi- proceedings, of of tion a is in judgment plea the said superior of court, Gwinnett, the county for before you, some of you, of the state between and A. Georgia, plaintiff, Samuel Wor- cester, defendant, indictment, on an court of being highest law in said state in suit, which a be decision could had in said manifest hath a error to the happened, of damage great Worcester, said'Samuel A. his complaint appears. We error, if been, that hath should be being willing duly cor- rected, and full and done to the speedy justice afore- parties in said this behalf, do command if be you, therein judgment then seal your and given, distinctly openly, you the record and send aforesaid, with all con- things proceedings same, to the supreme court of the United States, cerning this writ, so the same together you have at Wash- next, on the second of ington Monday ih the January said court, held; then and supreme that the there record and aforesaid the said proceedings being court inspected, supreme cause therein, further-to error, done to correct that what of and of right, laws custom according should be States, done. TERM 1832. of State “ Márshall, chief of Witness, justice the honourable John year the first court, Monday August said supreme thirty-one. Lord one hundred o.ur thousand eight Carroll, Wm. Thos. United States. Court of the Clerk of Supreme “ Henry- Allowed Baldwin. to the state States America Georgia, greet

“.United ing: “ be, cited and at admonished hereby appear You are be holden at States, Wash court supreme next, the second Monday January pursuant ington, superior court for filed in the clerk’s office writ error wherein in the state Gwinnett, the county n SamuelA. error, and the state of Worcester plaintiff cause, if error, be, -in there to show defendant Georgia Samuel said A. rendered Worcester, against why judgment not be mentioned, corrected, should error writ the said as in why speedy parties be done iustice should that behalf. Baldwin, one Witness, the honourable justices Henry

“ this 27th of the United court day supreme thousand hundred October, in the one eight Lord our year Henry Baldwin. and thirty-one. Gwinnett, set —On 26th county State Georgia, November, Lord of our year eighteen day hundred William Potter before thirty-one, appeared personally subscriber, Mills, John said peace justice holy on the county, evangelists sworn being duly that on God, saith, the 24th and day Almighty deposeth a true instant, he delivered copy within November Wilson citation excellency, to his Lumpkin, governor another delivered, state and true thereof he copy Georgia, November, instant, Jenkins, on the to Charles J. 22d day aforesaid, Esq. showing attorney-general at the times of said and respectively, governor attorney-general, stated, the within citation. delivery herein Wm. Potter. “ and day before theme, year Sworn to and subscribed above Mills, written. J. .P.” John This court writ error was returned supreme SUPREME COURT. The

[Worcester v. State of of all the copies proceedings.'in court of supreme Gwinnett, stated, county and with certifi- accompanied of the clerk- of that court in cates terms: following n “ I, Gwinnett county. Park, John Georgia, G. clerk of the court county Gwinnett, and state superior aforesaid, that the certify annexed and do ais full and com- foregoing exemplification and plete had. proceedings judgments Court Samuel A.. Worcester, in said one of against the defend- mentioned, in the case therein ants remain, of record, said court. superior “ under and Given seal of my-hand, court, this 28th day 1831. of November John G. Clerk. Park, “ I also that the bond, which certify, original a-copy bond was in the usual also (the annexed form), copy error; writ of the annexed were and filed duly deposited in-the court, office said clerk’s 10th November day of our Lord hundred and year, thirty-one. eighteen under aforesaid, Given fiand seal my day date written. G. Clerk.”. above Park, John Butler, case of Elizur plaintiff The error v. The State before the court was brought supreme same 'manner. Mr case for the in error Ser- plaintiffs argued who,m Wirt, Mr also Mr Elisha W. Ches-

geant ter. laid were down supported positions following and Mr Wirt.

Mr Sergeant the question the court 1. had jurisdiction brought- .That error; them the writ of and the before extended jurisdiction to criminal and to-civil cases. equally (cid:127) of error was issued, duly returned, arid That writ duly 2. the court, before under regularly question so as bring States; and laws constitution oblige of if. to take court cognizance * That the Georgia plaintiffs statute convicted, error indicted and was unconstitutional void. Because: TERM 1832. 535 Georgia,] v. The State of States, the of the United establish- the constitution

1. By Indians of intercourse belonged, and ment regulation wi.th the United States. to the exclusively, government thus 2. The power given, exclusively, and acts .treaties United States ha'd been exercised force, case directly now and applying congress, interfere, Cherokees; that no could without a and laws, which of such treaties the con-

manifest violation land. were law supreme stitution assumed change The statute 3. Georgia laws; to that which they prohibit per- these regulations declared inno- to make that criminal mitted; to condemnation méritorious; pun- and to subject cent who.had of the United States ishment, citizens committed free offence. no conviction, indictment, and sentence That- being

4. was.unconstitutional a statute Georgia, upon founded effect, no also themselves void void; were be reversed. ought and illus- enforced supported, several positions

These and authority. trated argument authorities were to: referred following 1789; Act 25; Miller S. sect. 65, Judiciary

2 Laws U. 4 311; Peters, State of Missouri, v. 4 Wheat. Nicols, Craig v. 248; Cockerell, Peters, 5 Ex v. 400, 429; Kearny, Fisher parte 264; 6 Martin 38; Cohens v. v. Virginia,. Wheat. 7 Wheat. 488, 470, 472, S. 304, 361; 1 Laws U. 315,

Hunter, 1 Wheat. Sketch, 106, 107; 453; Historical Blunt’s 482, 484, 486, Cherokees, 1785, 2d 28th Nov. 1791, July with the Treaties 1798; 3 S. 1794, 284, 2d Laws 27, 125, Oct. U., 303, 26th July 82; Blunt’s Hist. Sketch, 113, Journ. 12 Congress, 460; 454; 1 S. Hol 42; No. Laws U. 114; Federalist, 110, 111, 151; M’Intosh, Johnson v. 8 Pack, Peck’s Rep. v. land 5 Peters, State of Nation v. 548; Wheat. 199; 3 Ware Dall. v. 48; Hylton, v.

1, 16, 27, 31, Hughes 1 Hamden, Paine, 55; Fisher v. 489; Wheat. Edwards, 9 79; Cases; Eaton, M’Cullough v. North Carolina v. Hamilton 121; S. 3 316; U. 2 Laws 4 Laws Wheat. Maryland, State 9 S. Wheat. 750; Gibbon 460; 6 Ogden, S. Laws U. U. SUPREME COURT. Georgia.] v. Slate of

[Worce9ter The Mr Chief delivered of Justice the the opinion Marshall Court. be cause,

This in in can placed, of which it every point view is of interest. the deepest state, union, is a

The defendant of the which has member exercised the of who deny over a powers people the of the United are under jurisdiction, protection States. Vermont, condemned

The is a of the state citizen plaintiff of hard labour for to four' in the years Georgia; penitentiary of an under act he the which alleges repugnant colour laws, the constitution, and treaties of United States. state, the power controlling legislative power the laws the if constitution rights, of a once existence numerous and have any; political citizen, of a liberty are all in- personal people,

powerful in the considered. now be subject volved court, case, every It this in more in behoves especially into its this, examine eyes; jurisdiction scrutinizing of a before it is exercise proceeds contro- which verted.

The first in the this is performance step duty inquiry whether the record is before the court. properly court,

It is certified clerk of which by pronounced under condemnation which plaintiff judgment and is also authenticated imprisoned; error the seal of the with, and annexed It is returned to, court. writ error . form, the citation issued one of being signed by regular court, and on supreme associate served justices thegovr ernor more than thirty attorney-general days the commencement of the term to before which writ of was returnable. error 22, Laws 64, S. so (sec. 25, 65), 2 U. far as act judicial mode prescribes proceeding, appears lite-

rally pursued. 1797,

In a rule was made Wheat February Rules) (6 “It ordered words: the court, subject, following that the clerk of’the court to writ error shall directed, make return of same a true transmitting TERM 1832. The State of y. record, and the same, copy proceedings the seal the court.” his hand been done. But the has not signature

This.has judge been added clerk. The law does not it. require . doés not

The rule it. require

In case Martin v. Hunter’s Lessee, 1 Wheat. 361, an was taken to the return of exception refusal enter a state court to prior court; judgment reversal .not made it was because the state court to judge writ the' but the exception overruled, directed: . held return was sufficient. In and the Buel Ness, 8 Van 312, also a writ of to a Wheat. error state court, record was the manner. authenticated same No exception it. These were cases. But it civil has taken to been truly that, bar, in to this process, said at the the law makes regard a between and criminal civil case. no distinction The same both. in If of the sanction court required return the cpuld been, for the establishment of this necessary it position, silently given. The State of 4 a

M’Culloch v. Maryland, 316, Wheat. action, a tam recover and brought the record penalty, qui the of the court seal and of was authenticated the signature that of a Brown et al. State clerk, without The the judge; for a fine and . forfeiture The was an indictment of Maryland, too, case, was authenticated the seal the this in record the certificate of clerk. The is both the practice and court ways. act, the then, and record, judiciary

The according The before us. court, regularly rule and. the practice exhibit is, a does case inquiry more cognizable important ? tribunal others, error, in and plaintiff charges indictment “ within the with the offence of residing white being persons, license,” and “with- nation without limits of Cherokee constitu- and defend the' oath out takén support having state of tion and laws Georgia.” in proper person, in state court appeared defendant filed plea:

and the following Worcester, in Samuel his And own proper the said A. and take fur- says, comes that this court ought person, Vojl. S VI.-t-S SUPREME COURT. Georgia.} v. The State of aforesaid, be action prosecution ther cognizance and. July 15th that, cause, day the year he in says, is, nation; the Cherokee and resident .was, still he crimes, crime or and each of them, the said supposed that all, Echota, at at the town of committed, if'committed New court, nation, out of this Cherokee jurisdiction the said Gwinnett, elsewhere, within the not'in county juris saith, and this defendant he citizen of this'court: that is a diction Vermont, America, one the United States of of the state Cherokee that he in the capa atid the'aforesaid. nation entered city authorised missionary duly American Board Missions, for Commissioners Foreign authority and has re not since been president United. it: was, to leave arrest, him he at the time his quired in preaching gospel Indians, and engaged Cherokee the sacred into translating scriptures language, the said approval nation, Cherokee permission .of humane with the policy accordance for civilization the United States improvement Indians; there, that his residence is the purpose, residence aforesaid indictment: charged, and this defend that this saith, state of prosecution ant further Georgia ought haye because, maintain, saith, he several treaties time, tó been entered into have, time between the United nation of Indians,- wit, at Hope on the 28th well, day 1785; November at Holston, on the 1791; at day of July Philadelphia, on the 2d 26th day June 1794; on the 2d of Tellico, day at October 1798; Tellico, at 1804; the October at Tellico, On 24th of day on the 25th day 1805; Tellico, at dn of October the 27th of day 1805'; October on the of city, 7th Washington 1805; at day January at Wash 22d on the of.March city, day 1816; ington the at Chickasaw House, the 14th Council on day of September 1816; at the Washington Cherokee on the 8th Agency, day 1817; of and at July on the 27th of ty, day 1819: all February which ci trealiés ratified duly by the senate of the United America; and, States which treaties, by the United Stales 3aid the Cherokee a so .America'.asknowlédge nation to be nation, authorised io vereign govern themselves, and per all sons-who settled have- within their from any free territory, interference by the legislative several states composing TERM 1832: v. The State of the United States in reference to acts done within America, the .of the and, treaties, whole territory; by own nation, -now east Cherokee the the territory occcupied by them; to the has been Mississippi, solemnly guarantied full of which treaties are at day, treaties existing force. these treaties By treaties,and Hope particularly well and Holston, the aforesaid territory acknowledged lie without the the several states composing jurisdiction union and, it is States; stipu thereby specially lated, that the citizens of the United States shall enter visit, aforesaid without a on a territory, even passport authorised one from some duly -a governor all of thereto, States: of the United president afore to the will reference and at fully more large appear, said acts saith, that the treaties. And defendant several done, bill of indictment or omitted charged done, if as be at within the said so all, territory recognized them, nation, held so, aforesaid,, to the said longing acts, those that, for under the of the United States: guarantee nor not amenable to laws defendant Georgia, is. state; and that the of the said courts jurisdiction-of ter to add the said laws the state of which profess state, and to of the said counties to the several adjacent ritory said persons territory, over laws extend Georgia on which this and, the act same; particular, inhabiting {an wit, act indictment this defendant grounded, against and arbitrary exercise of assumed entitled an act prevent frond the authority under pretext all persons, power, by laws, to prevent and their white Indians, per Cherokee chartered limits of part within from residing sons Indians, provide occupied -Georgia and to enforce mines, the protection gold guard are aforesaid'territor.y/ the. repugnant within laws the state of. constitution treaties; which, according the. aforesaid law of the supreme of the United part compose therefore, are, unconstitu laws land; and that these Georgia laws of effect; that tional, the said void, Georgia no void, they impair obliga also unconstitutional and because afore between formed by tion of the vaiious. contracts America, the said United said Cherokee nation and COURT. SUPREME y. GeorgiaJ State laws said uncon- also, above recited: that the Georgia with; interfere void, attempt stitutional and «and because the the with Cherokee to and control intercourse regulate said constitution, which, to nation,, the said belongs exclusively States; and because the said the the United laws .of congress States, st'atute'of United on the to the the passed are repugnant ‘ A— to an act of- March entitled trade day regulate tribes, to the Indian and preserve peace and intercourse with therefore, court has no that, this frontiers:’ juris- on.the to make further or answer to this defendant cause diction further,to this indictment, or try said bill of and punish or offences the said offence supposed for alleged defendant therefore, de- and, indictment, of them: the bill to held bound he shall whether fendant prays judgment ” further to said indictment. answer the was And prisoner, This overruled plea court.. found verdict jury plead guilty. arraigned, being labour, in him hard sentenced him, and court against of four years. term .the penitentiary, the matter it court decided that plea, overruling By therefore, not bar to the action. The plea, contained whether it examined, for the determining purpose must within the provisions party a case' brings.the makes of the “act establish section judicial twenty-fifth States.” of the United courts avers, residence, in the indict- charged

The plea president United was under authority ment, approval Cherokee permission States, treaties, between subsisting That nation. Cherokees, sove- acknowledge themselves and who govern, persons nation reign free from their-territory, within any right legislative settled states several United States composing interference (cid:127) That act under "whichthe America. prosecution treaties, is, to the said therefore, is repugnant instituted is, also, act That said uncon- void. unconstitutional interferes-with, stitutional; because and'attempts regulate which, nation, intercourse control, re-, and, because, also, it exclusively, congress;- belongs, act entitled the statute of pugpant 541 TERM of v. The State [Worcester tribes, Indian with the trade arid intercourse

regulate the on frontiers.” preserve peace the twenty- of this be the compared

Let averments plea the act. section of fifth judicial the final the section enumerates cases judg

That of a the or decree state court revised supreme ment These'are, is of tixe where drawn court United States. ei of, or an the or treaty, authority validity question statute of States, the the is under, exercised United decision against dr of their where is drawn in the validity; question validity of, statute or an exercised under on the any authority constitution, or their treaties ground repugnant being laws and the such States, United decision is in favour their or is drawn in where the construction question validity; constitution, of, clause or or statute treaty, or commission held States, decision title, or set specially against right, privilege exemption, or claimed either under such clause up .said party constitution, statute or commission.” treaty,

The indictment and draw in in this we question, case plea think, the treaties ma'de the-United validity Indians; so, with the not if their cer- construction is tainly been, and the decision has if question; drawn. in. “ against or validity,. against right, privilege exemp- tion, set and claimed under specially up them.” also They draw into of a question statute validity “ on the of its to the consti- ground being repugnant tution, treaties and laws of the and the decision is in favour of its validity.” is, then, think,

It we clear too that the act controversy, by which this court is congress, constituted, has it given the, course power, on it imposed duty, exercising in this This case. however jurisdiction duty, can- unpleasant, avoided. Those fill the who judicial department no discretion in to be- before selecting subjects brought We must examine the defence them. set up plea.

We must and decide inquire whether the act of the legislature of Georgia, under ihe in error has plaintiff been prose- and condemned, be with, consistent to, cuted repugnant constitution, laws and -United treaties States. SUPREME. COURT. y. The (Jeorgia.] State of

It been said at the bar, has. acts legislature seize On whole Cherokee out ''Georgia country, parcel state,extend her code .among neighbouring counties laws, over whole abolish its country, institutions ánd annihilate its-political existence.

If effectof the into general this.be the let us system, inquire the effect of the statute and section which the particular indictment founded. enacts that all white within the limits persons, It residing of the Cherokee on the 1st or at next, March day nation thereafter, time without a license ex- his permit from or from such as his cellency governor, excellency agent shall license, authorise to permit or governpr grant the such who not have taken and oath the required, hereinafter misdemeanour, shall be and, a conviction guilty high upon shall be thereof, punished confinement to by penitentiary, the. labour, for a term not less four years.” hard at than he section authorises the should eleventh governor, The mines,, for the or the deem it the necessary protection nation, of the laws in force within the Chérokee enforcement a to raise and &c. guard,” organise enacts, said The section the or any thirteenth guard be, authorised them,-shall hereby they member of or de- to arrest any. person charged empowered legally of the laws of this to convey, tected violation arrested, before a so person soon practicable, justice or inferior superior, court justice peace, judge law.” . state, to be dealt with of this according The extra-territorial limited every being legislature ,in to its action, own or citizens the very passage subjects, act is assertion of of this over jurisdiction on nation, rights powers consequent jurisdic- tion. then, first in the constitution step, inquiry, court,

and laws on this is an examination impose fight- this, fulness of claim. America, a wide in- from separated by ocean, was Europe nations, a distinct habited into divided people, separate by world, each and of rest of independent háv'íng their own, by ihstitutions themselves governing JANUARY TERM v. State is difficult

own laws. It comprehend proposition; of either the inhabitants could have globe right- quarter n ful dominion inhabitants of the claims over original or that other, the lands they occupied; or over discovery other should of either discoverer by give rights annulled country.discovered, rights nre-ekisting possessors. its.ancient for a series

After concealed ages, enterprise lying science, nautical some of conducted her Europe, guided into western world. sons found They adventurous who made small had possession people progress agri- manufactures, and or .whose was- general culture employment war, arid fishing. hunting, adventurers,

Did coast; these and occa- along sailing it, on for the landing acquire tó governments sionally several whom commissioned, or. whom they belonged, they soil) Pacific; the Atlantic property rightful dominion over numerous who rightful people occupied nature, it? Or has of all Creator conferred great things, these over hunters and on fishermen, rights agriculturists manufacturers? war, which,

But power, conquest, rights, give after.possess- ion, world; are conceded and which can con- never be troverted those descend. whom We proceed, then, actual state of ori- at their things, having glanced because it in our some gin; holding recollection shed might on light existing pretensions.

The maritime great discovered powers Europe and visited different of this parts continent at the same nearly The time. was too immense for of them one to

object any grasp whole; and the claimants were too to submit to powerful or exclusive unreasonable pretensions potentate. single conflicts,'which To avoid bloody mightterminate disastrously all; to it was for the nations of necessary to establish Europe which all would somej>.rinciple which should acknowledge, decide their.respective between themselves. This rights as. the actual by was, suggested

principle, things, title- whose to discovery gave by government subjects all whose made, it was by European authority against COURT. SUPREME The State of by pos consummated title might governments, . 573 8 Wheat. session.’’ because all Europeans, by acknowledged This principle, it, the nation to all gave acknowledge interest was the sole as consequence, discovery, inevitable making It on it. settlements the soil and making of acquiring right out the which shut compe- right principle exclusive anwas not one which could had who those agreed tition it¿ among not to it. It of those who had rights agreed annul previous discovery by European given among right regulated of those discoverers; already but could affect the rights or as as occupants, occupants either aboriginal possession, It man. before of. memory made a discovery virtue did found but to purchase, right the exclusive gave to sell. possessor right on denial was between the and the natives Europeans relation The case particular in each determined maintain pre-emptive and could privilege asserted States succeeded to The .claims place. particular Britain, both but no territorial political; attempt, of Great known', has been made far them. far.as is enlarge so So or were in their .nature theory, only merely existed they still nations, claims other Europeap they exclusive (cid:127) So far character, and remain dormant. retain original exerted, fact, exist in they practically both one, are asserted ad- parties, understood .and other. mitted by Britain on Great determined colonies in planting after

Soon his America, the charters sub- companies king granted the views associated for the who purpose carrying jects effect, into and of first enriching crown th.emselves. was made taken charters before possession these They country. purport, convey generally, part soil South Sea. This Atlantic occu- soil, from warlike nations, equally numerous willing pied b£ defend their absurd possessions. extravagant able the sea coast, or the the feeble settlements idea, that made made, under whom they acquired legitimate companies the lands occupy them govern people, (cid:127) JANUARY TERM 1832. 54A v. The State of sea sea,-did to not enter the mind msfh. They were well understood to convey which, title to according the' common law of European sovereigns America, respecting they and no might more. This rightfully convey, was the . exclusive such lands as. the natives were purchasing to sell. The crown could willing not be understood to grant what the did not affect to claim; crown nor was it so under- stood. war is conferred power, these making charters

the colonies, alone but war seems to been con- defensive In to the first- templated. first second charter colonies, “for empowered, defences, several to encoun- ter, resist, who expulse, persons shall, repel, without- license,” to inhabit “within the said precincts attempt colonies, limits of said or that several enterprise at time hereafter the least detriment or attempt annoyance ” of the said colonies or several plantations. The charter Connecticut concludes- general power

make war with defensive these terms: and upon causes just to' invade and destroy other natives enemies -of the said colony.” words,

The same power, conferred on the same- Island. Rhode and, invasion, This upon cause, to power repel, just invade natives, authorizes destroy as offensive well defen- as war, but sive “on only cause.” The terms just very imply existence of country of an invaded, and who enemy cause of war. given just contains the The charter to William Penn recital: following because, country, “and so remote a near so many barbarous nations, incursions, themselves, well as of savages robbers, enemies, feared, may probably pirates, then we &c.. confers therefore instrument have given,” war. power feared, nations, whose weré barbarous incursions These war whose incursions make repel given, of Penn, or occu- not considered surely subjects .were . his lands his pleasure. pying during

The same Bal- clause is into charter Lord introduced timore. T VI.—3

Vol. COURT, SUPREME 546 v. The State of Georgia.] [Worcester to to be for the professes char- Georgia charter granted The to comfortable poor enabling gain subjects itable purpose lands in the American cultivating provinces, by subsistence It whereas and desolate.” recites: “and waste “at present America have frequently ravaged in North our provinces Carolina, that' South more enemies, especially Indian by laid was war late by neighbouring savages, which, sword', -and numbers the English great fire and by waste who massacred; and our loving Subjects, miserably inhabitants numbers, of the smallness of their reason there, by inhabit now. calamities, war, be new to.tbe.like any exposed case will, in unsettled, southern frontier contiuueth as' their whole inasmuch said savages.” lieth open and for the new colony planting incompatible These motives soil, and all its inhabitants ideas granting the lofty truth, They to sea'. these sea from demonstrate title and were con- only, against asserted Europeans grants so far as the were natives blank pápér rights sidered defence, power only war for The given concerned. conquest. for one of contain their .charters passages showing

The objects Indians, and their conversion to the civilization con- accomplished by conciliatory Christianity -objects, — extermination. example; and duct good (cid:127)' and of European actual na- things, practice The. the American continent as lies between so much.of tions, on claims, Atlantic, their and .explain, Mississippi Their unavoidabty-inter- pretensions they charters granted. other; one was ad- .discovery though fered each other, exclude the claim mitted extent was discovery subject unceasing Bloody contest.. them, arose between importance gave conflicts se- Fierce warlike in neighbouring*nations. curity be formidable enemies, or. effect- character,'théy their might assert- resentments, Instead of friends. ive rousing-their lands, or to claims their dominion their persons, over ing alliance pur- their sought professions, flattering French, chased rich presents. English, their friendship were competitors for Spaniards, equally with the exact meaning their well aid. Not acquainted TERM Stale were they whether it to be words, material supposing nor Europe; of the':r father the children called the subjects, in return affection, of duty lavish professions their, aotugj received; so long indepen presents they rich untouched, and their to self government dence dependence were profess they willing acknowledged, supplies which furnished in.ab from need, entering intruders solute and restrained dangerous in which sense and this-was probably country: term was them. understood.by is,

Certain it furnishes no example, that our history on the attempt first settlement our country, affairs with internal the crown to interfere part out Indians, to powers, than keep foreign .farther' agents into otherwise, seduce them who, as traders' or might foreign their lands when The wére alliances. purchased king take; to but to-sell, at a were' never price they willing willing of them. He also alliance surrender purchased coerced a intruded into the subsidies; but never in- dependence affairs, terior or interfered with their self of their government, far as themselves respected only. so. In- Britain,

The views Great general regard of Indian Stuart, dians, Mr superintendent, detailed by Mobile, at affairs, in a presence delivered several speech distinction, soon after the 1763. Towards peace'of persons I the conclusionhe inform says, “lastly, yóuthatit king’s all his Indians order to treat with. :to governors subjects, on the and to forbear all encroachments humanity, justice them; all to individuals territories accordingly, allotted lands; but, from know any your prohibited purchasing as,you that, as white brethren cannot feed when your you visit you that unless them to it them is expected you ground plant, give But, wiil cede lands to the for that when- you purpose. king shall territories be ever surrender any your you pleased futhre, at a his it done, public must be for the majesty, nation, of the provinces, of your when the meeting governors the consent or obtain be superintendent present, all The your hunting boundaries your people. grounds to be be no fixed, will settlement permitted accurately treaties. all that made be assured them. As upon you may 54,8 SUPREME COURT of Georgia.] The State

{Worcester it is so your people'will expected faithfully kept, , also, will careful them.” strictly observé you, Britain, in of Great proclamation king issued forbids the rátification of the soon after articles peace, of sur- colonies to any governors grant warrants which, hav- whatever, or hot vey, .pass patents upon any lands aforesaid, to,, been or us as purchased by, (the ing king), ceded Indians, aré reserved to the said or them.- declare proclamation “and-we do further proceeds: our aforesaid, to be will and royal pleasure, for the present, reserve, dominion, our sovereignty, protection, Indians, the use for said all the lands and territories westward of sources the rivers lying .fall sea, from we into the the west and northwest as aforesaid: forbid, do our strictly all hereby our pain displeasure, subjects or 'settlements loving any purchases making or whatever, lands re- possession above taking served, without our and license leave special purpose first obtained. we do’ And further strictly enjoin-and require persons have, whatever, who either seated wilfully inadvertently, within themselves lands upon any countries de above which, scribed, lands upon any ceded having to, or us; are still reserved Indians, said purchased; aforesaid, forthwith remove from such themselves settle ments.” "A issued Governor proclamation, in 1772, Gage,' con “

tains the following whereas passage: many persons, contrary of, the positive orders king, upon have un subject, dertaken make settlements beyond boundaries fixed by the treaties made with the nations, Indian which boundaries between, as.a' to serve barrier the whites and the ought sa:d (cid:127) nations; on the Ouabache.” The particularly proclamation orders such those persons without quit delay. countries - Such was Great Britain policy towards the Indian nations from territory which she excluded all inhabiting other such claims, her Europeans; and such her ex- practical of the charters she position had she them considered granted: as nations capable the relations and of peace maintaining .war; of themselves, her and she governing protection; TERM 1832. The State them, treaties with she made obligation acknow- ledged. was

This the settled state' of. when the war our things The- revolution was influence Our enemy commenced. established;- her enabled resources her to that influ- up keep ence; and colonists had much cause for the apprehension ¡Great that the would, Indian-nations the’allies Britain] This, add their arms to hers. as was to be became expected, solicitude object great Far congress, advancing a claim to lands, their of dominion over asserting them, that the resolved congress securing preserving “ of the Indian nations friendship to be- appears a-subject.of the utmost moment these colonies.” The. exhibit the early most congress ánxious journals de e

sire to the Indian nations. Thre Indian depart conciliate established; ments were and commissioners in each, appointed “ with treat their Indians.in respective departments,'in the. on the -of name and behalf Colonies, in order with preserve peace the said friendship Indians, and to in-the

prevent taking-any part present commotions.” The most strenuous exertions were made to those procure on which Indian supplies friendships supposed depend; excite every .might hostility thing avoided.. made .with the Delawares, first treaty September 1778. which it language-of equality drawn, the- evinces undertaken,, which the

temper negotiation was which then States. opinion prevailed hostilities, all 1. That acts offences one or either-.of the other, parties against contracting mutually forgiven, oblivion,- buried in -the never more to depth had in. be. remembrance.

“ shall, from That hence- perpetual peace friendship forth, take and subsist between the place parties contracting aforesaid, if .either of through succéeding generations:'and war, in a parties just necessary are-.engaged .any nation.,or nations, other, that then each assist due abilities, their enemies proportion’to their are brought till to reasonable terms of &c. accommodation,” other,

3. The third article stipulates, free among things, SUPREME COURT. State of v. The for the American passage nation'- troops through Delaware shall be furnished with engages provisions and necessaries at their value. other “ 4. the better For security now peace friendship entered into all parties 'infractions contracting against Same the. the citizens of either to the party, prejudice other, neither shall to the pun-' party proceed infliction other, ishments on the citizens otherwise secur- than offenders, the offender by imprisonment, ing or any means, till a fair and competent impartial trial can be hád by of both as near judges juries parties, as laws, can be to the customs and usages natural contracting parties, jus- tice,” &c.

(cid:127)5. The fifth article the trade regulates contract- between in manner parties, ing entirely equal. sixth article entitled to attention, as it peculiar were,

contains disclaimer at time, as- designs .es, enemies, the United Sta their cribed to and from of 'which- was then anxious to imputation peculiarly congress words; It is in- these government. free “Whereas the of the United' States enemies have endeavoured, by every arti- their .Indians in possess fice in power, general with án it is the states aforesaid to design extirpate opinion that of their Indians, and take possession country: obviate such false the Unitéd States do suggestion engage guaranty Delawares, nation of aforesaid heirs, to the and.their in the fullest most manner, ample territorial rights, treaties, as hath been said bounded as.the Dela- long former hold fast chain ware nation sháll abide by, friend- now entered into.” ship further tribes, -that other parties friendly agree, of the United to form a may

interest invited nation heads, Delaware whereof in congress.' representation in its and in its

This is formed, treaty, provisions, language, be, the model of treaties as near between the crown- ,of ed Europe. heads sixth .The shows treated article then how congress inju- rious calumny cherishing unfriendly political designs' amd civil the Indians.- rights

JANUARY TERM 551 Georgia.] v. The State [Worcester revolution, the of the Cherokees took the war part During its termination, -the United States, British. After with did not feel so peace, necessity desirous though strongly Their continued. war political situation while being well think it advisable to very assume.a changed, might Cherokees tone, and to- the same impress respect higher felt for the for before Great Britain. was king congress This for the may treaty account language Hopewell. is the

There more reason that the Cherokee supposing chiefs were not critical of the from the very judges language, his mark; fact that one makes no was every chief capable his It is was name. signing probable-the .treaty interpreted them. with the declaration, is introduced

(cid:127)The-treaty that “the commissioners United States plenipotentiary give peace to all the them Cherokees, receive into the favour States of protection America, United on the following conditions.” did they

When States not.also peace, gave receive it? it? If Were not desirous.of both'parties we-consult the does it not us inform that history day, at as anxious to obtain

were least as. Cherokees? We come did the Cherokees ask, further: .seat may the. or, did peace; solicit American American government them Obtain it? The was treaty commissioners made go not at New York. The word then, at Hopewell, give,” it, real tó no importance attached for. The first and second articles the mutual stipulate restora- and are course equal. tion prisoners, article

The third Cherokees to acknowledges be under the United States of America, and of protection no other power.

This is found treaties, in Indian stipulation It generally. Britain; into introduced their treaties Great may be found in with other those Its probably powers-. European traced to the origin nature of their connexion those and its true is discerned their powers; rela- meaning tive situation. law of general European sovereigns, respecting . America,

claims in limited, Indians, intercourse SUPREME COURT. v. The State of great ultimate degree, particular whose potentate

pf domain was the others. This was acknowledged state of time of general It was sometimes things peace. in war. The changed was, that their consequence supplies were derived from nation, chiefly their trade confined Goods, it. to their indispensable shape comfort* were received from What was of the same hand. presents, still more hand importance, strong intru- restrain licentious from interposed disorderly lands, info their sions on their country, encroachments from those acts of violence which often attended by reciprocal Indians murder. perceived protection what was beneficial to themselves—an to only engagement on them. It ho claim involved, punish aggressions practically, lands, no It their their dominion over persons. merely bound the nation to crown, the British a dependent ally, as. óf a friend and protection claiming powerful neighbour, of that without in- protection, receiving advantages a sunsnder their national character. volving This is the true of the and is undoubt- meaning stipulation, n the sense which it was made. edly Neither the British Cherokees, nor the ever it otherwise. government, understood entered, into the United States, The same stipulation manner. in the same undoubtedly to construed re- They nation into their ceive favour protection. Cherokees The themselves to be under the acknowledge pro- States, United and of no other power. Protec- tection tion not the destruction does imply protected. The manner in which this understood stipulation Ame- rican acts government, explained language our first president. fourth article draws the between boundary Indians citizens But, in

ahd States. describing “ " term boundary, allotted” and the term ground1’ hunting used. Is it Indians, reasonable that who suppose, could not write, and most could probably read, who were Certainly not critical of our should judges language, the word distinguish “allotted” from the words out.” “marked sub- actual of contract was the ject nations; line between the dividing two

JANUARY TERM 1832. SS3 Tbe Stale of Georgia.] attention well may very have been supposed n confined to that subject. When, fact,, they ceding lands States, of their the extent to. describing cession, it well be un- very that supposed they might derstand the term that, instead employed, indicating they were granting, lands. If admit the term would receiving of no other which is not mis- signification, conceded, its being sois results derstood so apparent, from the whole necessarily transaction; that must, we think, be taken the sense which it was most used. obviously ” So Hunting. respect the words hunting grounds.

was at that time the principal Indians, occupation their land was mere used for than for any other. purpose It not,, could however, be supposed, intention existed! the full use of the lands restricting reserved.

To the United it could be a concern, matter of no whether their whole territory devoted hunting grounds, or whether an field, occasional and an occasional corn village, some interrupted, to the scene. gave variety These, terms had been used in their treaties with Great Bri- tain, and had been never had never They misunderstood. supposed imply British their lands,

take or to interfere with their internal government. The fifth article the United protection withdraws from settle, citizen who has settled, or n landsallotted to the Indians, for their hunting grounds; .that, if he the stipulates shall not six months remove within Indians may him. punish

The sixth and articles for seventh the stipulate punishment of citizens of either offenceson country, who may commit be or the citizens of inference only ágainst other. The is, from them considered that drawn the United a Cherokees as nation. benefit and

The “for the ninth article is in words: these of Indians, of prevention comfort for the injuries oppressions Indians, the United on the of citizens or part States, in sole and assembled, shall have exclusive congress Indians, right the trade regulating managing their; affairs, .all as think they proper.” affairs,” To construe the all their expression “managing U Yol. VI. —3

S54 COURT. SUPREME v. The State think, be, a a into surrender of we would self-government, of their and a perversion frofn necessary departure meaning, The construction which been on them. uniformly put Indian trade. influence great the article The subject it, . it it made desirable that should gave, congress possess claim, forward the with the commissioners profession brought that Indians, their was “the benefit comfort motive ” and the This prevention oppressions. injuries true, trade, as their' and' as respects regulation respects trade, affairs connected with their but can regulation true, respects of all their affairs. .be management these, The most aré the of their important lands, cession intruders on them. credible, I's it security they against should considered themselves surrendering have eessions, States the dictate future and the right made?, terms on they should be toor their sub compel mission to the and licentious disorderly violence intruders ? It is could have equally inconceivable supposed into themselves, article, a thus on another by phrase slipped and most to have divested subject, interesting themselves of' on not connected right subjects self-government trade. not be measure could their benefit .Such comfort,” or for “the and oppression.” prevention injuries Such a construction would inconsistent with the spirit this and of all of those articles subseqúenMreaties; especially Cherokees to declare hostili recognise ties, and to It make war. would convert a treaty peace covertly» act, into an existence of annihilating political one of the parties.'' Had intended, such a result been would (cid:127) been (cid:127) avowed. openly This treaty contains a few terms used in capable being sense which could not time, have been at the intended which is inconsistent with the construction which has practical always put them; treat but its essential articles Cherokees as a nation capable of relations maintaining peace and war; and ascertain the between them and boundaries the United States. hav¿ treaty Hopewell seems not to established solid- peace. To accommodate the between differences still existing the state of nation, and the Georgia treaty

JANUARY TERM 1832. v. The of Georgia.] State July Holston The negotiated constitu- existing tion United had States been then and the adopted, go- vernment, more intrinsic having capacity enforce its just claims, was less mindful of perhaps high sounding expressions, We hear more no superiority. denoting peace giving mutual desire of Cherokees. The permanent establishing and of peace and all causes of friendship, removing war, is avowed, and, of this pursuance desire, the honestly first ar- declares, ticle that there and friend- perpetual peace America, all citizens of between the United óf States ship and all the individuals the Cherokee nation. composing

The second article repeats important acknowledgement, Cherokee nation is under the protection of United' America, and of no other sovereign States whosoever. has been

The already The In- meaning explained. situation, their were, dian nations necessarily dependent for on some of their essential potentate supply foreign their from lawless and wants, and for in- protection injurious into theit That country. trusions termed power naturally had been their under the They protector. arranged protection Britain: Great the British extinguishment but establishment of that of the neighbourhood, led naturally declaration, States place, Cherokees, that óf under the protection part of no power. of the United. assumed They with the United States, which had the relation before subsisted Britain. Great of a nation This relation -wasthat claiming receiving that of one powerful: more individuals aban- protection ¿nd character, their national doning subjects submitting of a master. laws article contains a third for equal The perfectly stipulation prisoners. surrender “the between declares, article boundary fourth asbe nation shall follows: more, of or of “allotments” We hear no &c.' beginning,” described, is between nation boundary A hunting grounds.” each; óf national character nation, consent. mutual boundary, acknowledged each establish abjility agreed To disputés, the other. ever preclude SUPREME 556 C0ÜRT. v. Georgia.] The State of

[Worcester commissioners, thatitshall marked plainly to be .be ap- and, order to each for party; ever pointed extinguish lands, Cherokees to the an claim of the ceded con- additional to be is the United States. For'this addi- paid sideration consideration release all tional the Cherokees to the ceded right -land, ever. for article, the fifth the Cherokees allow the United

By a road their and the of the Ten- country, through navigation nessee these The an river. cessions is acknow- acceptance of the Cherokees to ledgement make withhold right them. article, sixth it is

By on the agreed, Chero- part exclusive, kees, that the United States shall the sole No trade. claim'is made the man- right regulating-their affairs, of all their This has agement already stipulation been explained. The observation that may repeated, itself, admission their to make or re- stipulation right fuse it. the seventh article the United States

By solemnly guaranty to the Cherokee nation all lands their ceded. hereby article

The Cherokees citi- eighth relinquishes zens of the States who on their lands; and settle the ninth forbids citizen the United States to hunt on lands, theif or to enter their without country passport. articles are and contain remaining equal, stipulations which could be made awith nation only be capa-, admitted ble itself. governing

This thus treaty, national explicitly charac- recognizing Cherokees, ter their thus right government; of.self lands; their guarantying duty protection, assuming of course faith the United States for that pledging pro- tection; renewed, has been and is now in full force. frequently

To the general been added seve- protection .have pledge ral deemed specific valuable the Indians. pledges, Some (cid:127) of these restrain the citizens of the United States from en- croachments the Cherokee for country, provide thh punishment intruders. From the our commencement of government, congress passed acts trade and InN'c intercourse with the regulate treat nations, vvhieh them as ..ifest théir m: respect rights, TERM 1832.

JANUARY' State which treaties stipulate. to afford protection firm purpose is still in 1802, which acts, and' especially All these nations as distinct consider several Indian force, manifestly boundaries, within communities, territorial having political to all exclusive, authority having boundaries, which is not only lands those within acknow- States. but guarantied by ledged, an act for those humane In passed promoting congress Indians, had Jong designs civilizing.the neighbouring “ that, enacts, been cherished executive. It. final ex- the further decline and against

purpose providing settlements tinctionof the Indian to the frontier tribes adjoining th'e States, them of the and' for introducing among civilization, and of- the United habits arts president be, authorized, and in case he hereby every shall habits and where he shall condition improvement judge Of such Indians and that the means instruction practicable, Consent, to can be introducéd their own émploy with capable them in character, instruct the mode moral persons, good situation; suited and their agriculture teaching children in and arithmetic; for perform- reading, writing be such such other duties as according ing may enjoined, instructions and rules as the president give prescribe in the of their for the of .their conduct discharge regulation duties.” act of the In- avowedly

This contemplates preservation dian nations as an the United object sought to effect proposes this them object civilizing converting from hunters into the Cherokees had agriculturists. Though made considerable it already progress improvement, cannot be the act words of general compre- doubted hend them. Their advance habits and arts of civili- zation,” rather exer- laudable perseverance encouraged tions still farther to This meliorate their act condition.

furnishes additional to fix evidence a settled strong purpose the Indians-in their at home. country them security giving The treaties and laws of the United States contemplate the. - Indian territory from that completely separated states; and that all them provide intercourse with carried, on exclusively uniofl. SUPREME COURT. v. The Georgia/] State of this the

Is exercise of rightful power, usurpation? states were colonies, While these in its power, utmost extent, admitted to reside in When crown. our commenced, revolutionaiy struggle congress was composed deputies acting specific assemblage powers granted conventions several colonies. It legislatures, movement, was a por popular perfectly great organized; of those were the who were respective powers entrusted with (cid:127)the defined. accurately affairs management necessities (cid:127)of.our situation conviction produced mea- general those all, sures concerned must transacted aby in. body of all which the representatives assembled, and which of all: could command the confidence therefore, was congress, with ^ considered as invested powei war p'eace, our connexion with dissolved the mother congress .county, and declared these United Colonies to be states. independent written definition of Without any powers, they employed the United represent States at diplomatic agents several courts of offered treaties negotiate Europe; them, and did treaties . with France. actually negotiate From the same and on the same principles, assumed the necessity, congress affairs; first in of Indian the name of these management and, afterwards, Colonies; name of the United States. were made at Early trade attempts negotiation, regulate them. These successful, war was carried proving direction, and with the under the forces States, of the to make by treaty, and the efforts peace, earnest and in- Confederation found cessant. The exercise of congress war," and in our the same relations peace with powers nations, Indian as with those Europe.

Such was the state of the confederation when- things That instrument surrendéred the powers and adopted. peace and states, war them the prohibited congress, respectively, “ invaded, unless a'staie be or shall have actually cer received some, tain of a fonfied advice resolution by nation-of In being dians such is so invade imminent as not danger admit-of till .to the United assembled delay in congress This can'be consulted.77 instrument also the United States gave n the sole and assémbled exclusive congress regulat “ the trade Indians, affairs ing with the managing JANUARY TERM 1832. v. The State of

members of of the states: any provided, legislative limits power state within own any hot infringed ” violated.

The follow which thé ambiguous phrases grant power were so construed states North by'the Carolina and as to annul the itself. The dis- Georgia contents and confusion claims, from these resulting conflicting produced which were referred to representations congress, a committee, who matde their in 1787. The report report- does assent to states, the construction of ’the two but re- commends an' accommodation, by territory, liberal cessions by admission, on their part, claimed powers by The correct this article is congress. rendered exposition unnecessary constitution. adoption existing our That instrument on confers of war and powers congress peace; treaties, and commerce with making regulating states, nations, with the foreign several among Indian all that is tribes. These comprehend required powers for the intercourse with the of our Indians. regulation They are not limited restrictions on their free actions. The shackles on this in the confederation, are dis- imposed power, carded. distinct,

The Indian had considered as always nations communities, their independent retaining political ^original natural soil,-from as the rights, undisputed possessors time immemorial, with the of that exception imposed single them from irresistible excluded intercourse power, the first than discoverer of European potentate this, the-coast of claimed: particular region on those them- European potentates imposed restriction “ nation,” the Indians. The selves, very as well term “ a distinct from them, so means people generally applied treaties constitution, others.” already declaring well, to be made, law of made, as those to be supreme treaties sanctioned land, previous has adopted rank admits nations, among Indian and consequently capable treaties. words those making who powers “ selected our own words of nation” are language, treaty” ourselves, in our and legislative proceedings, diplomatic We meaning- a definite well understood having each COURT. SUPREME State Indians, as we have have them to them applied .the applied to all in of the earth. They other nations applied same sense. herself, has evidence that her furnished conclusive

Georgia, tips former with those enter-. concurred opinions on subject states, tained hter sister by by States. of her been Various acts legislature cited in the contract cession made argument, including her the' year acquiescence prove tending universal conviction that the Indian nations a full possessed to the lands until that be- right occupied, should they the United with their by consent: that extinguished their- Was from that state within territory separated line, reside, whose limits chartered they boundary might that, established treaties: within their boundary, no possessed could interfere: and rights the whole them, intercourse regulating vested acts, States. A the United review of these on the part Would too time, much is the occupy less because necessary, they have detailed in accurately at the bar. Her argument laws, newseriesmf manifesting her of these abandonment opinions, appears to have com- menced in December

In to this opposition by the-undis- original possessed right, puted every country; recognition occupants evidenced our right, history, every change which-we have passed; placed the through charters granted monarch of distant out distinct.region, parcelling territory possession of others whom he not remove could and did not attempt remove, made his and the cession claims treaty peace.

The actual state of since, at things time, and all history these and the explain charters; Britain, Great at king could treaty peace; cede what only to his crown: belonged These assexted titles newly can no derive aid the articles so often in Indian repeated treaties; them, extending first,, protection Gréat Britain, afterwards that of the United States. Thesé articles are re- others, associated with title to self cognizing fact government. very treaties repeated with them doc- it; the settled recognizes TERM 1832. 561 Georgia.} State v. The .[Worcester is, does trine of the law nations a weaker 'surrender its to self independence government, right —its with and its A weak associating protection. stronger, taking in order itself under to for its may place provide safety, itself without protection one more stripping powerful, Exam-, to right and government, ceasing state. pies of Tributary this in are not Europe, wanting kind cease to be do states,” Vittel,.“ feudatory thereby says as states, so self .sovereign long and independent government are the admin- authority left.in sovereign independent istration, of the one more than day, At present state.” be considered of self govern- holding of one or more ment under allies. and protection guarantee nation, then, community is a distinct occu- Cherokee described, its own boundaries accurately with territory, pying force, and in no which which can laws have Georgia but with the enter, the citizens of no right Georgia themselves, conformity assent of the Cherokees treaties, Thé' whole inter- and-with the congress. acts nation, is, this oúr course between United States and laws, constitution' and vested the-government States. which the plaintiff

The act of the state Georgia, void, and the. consequently .error was prosecuted, judgment court, revise, it? Can reverse a nullity. lately

If the to the system adopted objection legislation, to the Cherokee in relation na- legislature operation, tion, to its was confined extra-territorial objec- mere would far respected tion, right, though complete,-so But over much it.goes no power subject. court give'this correct, been taken If the review further. acts of is, the consti- are repugnant think Georgia

we laws, and treaties of the United States. tution, relations, be- interfere with-the established forcibly They nation, the United States regula- tween our which, con- tion of settled according principles committed stitution, exclusively

union. .treaties, in a. are in direct

They repeated hostility suc- years, cession mark out boundary separates

Yol, Y VI —3 SUPREME COURT. The State of

the Cherokee from country them Georgia; guaranty land within their boundary; faith of solemnly pledge restrain their citizens trespassing it; and of the nation recognize govern pre-existing power itself.' are in

They with the acts of equal hostility congress intercourse, treaties. effect regulating giving error, The forcible seizure and abduction of the plaintiff who was in the nation and by residing permission, wi.th of the of authority States, is also a president the United viola- tion of the which acts authorise the chief exercise magistrate n thisauthority.

Will, these considerations in error? powerful plaintiff avail We think will. He carried and seized, forcibly while under of away, treaties guardianship guarantying he resided, in which country it under the protec- taking of the United States. He was tion seized while performing, of the sanction the chief under the union, those magistrate the humane which had re- policy duties adopted by congress He was commended. tried, condemned, apprehended, a colour of law which has been shown repugnant constitution, laws, and treaties of the United Had States. to the same rendered for judgment, objections, been liable would none this court- question property, jurisdiction less cannot be clear It when the affects judgment personal .and inflicts if liberty, disgraceful punishment, punishment when could inflicted' on innocence. disgrace in plaintiff is not'less interested in the error operation this unconstitu- law than if tional his affected He is not property. en- less titled to protection the constitution, laws, and treaties of country. his has been

This point elaborately and, argued after deliberate decided, consideration, case Cohens v. The Common- Wheat. Virginia, wealth 6 264. . It is the of this court that the opinion su- judgment for the of Gwinnett, court county state Geor-r perior A. Samuel labour, Worcester to hard gia, condemning n penitentiary the state for four years, pro- Georgia, nounced void, ünder colour law court being constitution, treaties, and repugnant laws TERM The State of and an- to be reversed therefore, ought, nulled.'

Mr Justice' M’Lean. importance,

As this case highest involves principles ap enduring shall have lead to consequenpes as there are of this country; influence on the institutions state, I wish to distinctly, some on which case points so. I doing embrace my opinion, privilege I concur. With the decision, just given, indicted under law error was plaintiff Georgia,

<£ attached, nation in that for residing part Gwinnett, without a state, the laws of said the county excellency from his governor license or permit excellency his or from authorised governor agent taken the license, and without having such permit grant constitution laws and defend the oath to support as a himself to demean citizen uprightly thereof.” arrested, and, the defendant was

On this indictment being court Gwinnett before he superior county, arraigned substance, the filed, in following,plea: 1831, was, he and July the 15th of still that, admits on

He nation, in the Cherokee a and be, resident to continued committed, committed at was the crime, if town the nation, out of the Echota, in the said jurisdiction New Vermont, and that That he a citizen he entered court. of a in the capacity duly authorised country Indian miss- for Board Commissioners American

ionary Foreign of the of the authority under the Missions, president United to himby since leave it. States, required and That arrest, his the time .was, at engaged preaching he Indians, and in Cherokee to the sacred translating gospel with the permission into ap- Scriptures language, nation, and in accordance proval of States, humane policy of the Indians. improvement to then certain states,

He as a bar .the prosecution, treaties between the and the Cherokee Indians, made United States SUPREME COURT. State of

which the of the possession territory, now inhabit was them; to a solemnly also certain act con- guarantied in March passed entitled aa act to trade gress, regulate intercourse the Indian tribes.” He also alleges, this, the constitution subject, by States, is.exclu- .of vested in arid sively that the law congress;- Georgia, being to the constitution of the United trea- repugnant to, ties referred void, the act of specified-, congress and cannot-be enforced him.- against

This was plea court, the defendant overruled pleaded guilty. returned verdict jury and the defendant was guilty;

sentenced, court, to be in close kept the- custody, by sheriff of the until he could be county, to the transported peni- tentiary state, and the thereof directed was keeper the. receive, him into'custody, him at in the hard labour keep of four penitentiary, during years. term Another individual was included in indictment, the same plea court, and was joined jurisdiction in the sentence; also included to, but his name is not adverted because case principles are fully presented in the statement. above writ, To reverse obtained, this error Was judgment, been returned, with the which, having record the proceed- is now before ings, court.

The first which it question becomes examine, necessary the record- has been is, certified, whether duly so as to bring before this tribunal. proceedings regularly writ of error was A allowed, case, one of court, of this and the A justices requisite security'taken. issued, was also in the form citation the state of prescribed, true, copy which, as the oath of appears by Wil- Patten, liam day delivered on the 24th governor, last; and another true delivered, November copy month, 22d the same day attorney-general state.

The the clerk, recofd was returned under the seal court, who that it is full certifies a and complete exemplifica- .tion case; had' in he’ proceedings judgment TERM 1832. State v. The bond, of the and a writ certifies, copy that the original further in the clerk’s office and filed erf error, were duly deposited qn last. court, of November the 10th day said the record should be cer- case, a necessary, in such Is it the court? who held by the'judge tified a Lessee, was' Hunter’s writ case v. which Martin

In it of appeals to the .court Virginia, objected .of error defective, writ of error was because the to the return that the certified; 'court, case, in said, but the so was not record in the modes «the forms of process, proceeding few left are, with exceptions, -by exercise jurisdiction, in as this court may, regulated changed legislature deem, court,the this a rule of discretion, expedient.” By court, annexed a of a record proper óf return copy is to be a error, declared sufficient compliance writ of record, writ. The cer case, duly mandate annexed the court of the clerk appeals, tified by which has been therefore, The urged error. writ objection, return, cannot sufficiency Wheat. prevail.” —1 526, others, in the case of v. In 9 Wheat. Stewart Ingle court for the was a writ error to the circuit district issued, a of dimi- upon Columbia, suggestion certiorari which, record, the clerk was'returned nution record; motion was made for a new cer- whereupon, another made, tiorari,:on the that the return to Iiave ground ought clerk; below, the court and not by judge is, error, known, like writ direct- certiorari, it writ court. to the ed after

Mr with the Justice consultation Washington, judges, that, court, rules and according stated practice made the clerk return was-a sufficient return.

To ascertain what has been the course of practice general has been examination made into manner subject, recqrds courts' this' certified from state have been court; 1817, six' that, -in causes year appears w.ere clerk, óf certified, error, obedience writs In so certi were¡ the seal of court. two year ffied, one State of of them the case being M’Cullough Maryland.

566 COURT. SUPREME Georgia.] The State of v.

[Worcester certified; In the so 1821, in the year three eases werq 1827, In 1823, five, there and in there was one. were year the seven. year, ensuing 1830, causes so in certified,

In the there were year eight the a on record. There which,, a state was were five party and five in three causes thus certified year the year. present were above there causes only fifteen

Uuring periods, the courts, from state the records certified where the court or the and one the these was case presiding judge, Cohens State of Virginia.

This court rule on this adopted in following subject 1797: court, is the court to It ordered clerk of make, writ of be directed, error shall re- any may same, of the record, a true

turn transmitting copy in ie cause, hand, t his proceedings seal,of the court.” rule, court cannot be adopt ques- [lower and it seems to tioned: the practice ever since regulated cases, In some adoption. certificate the court, or the has record; been affixed to the but this presiding judge, court decided, been raised, has where question such is certificate unnecessary.

So the authentication of far the record is concerned, it is distinction make between á and a impossible civil criminal be What sufficient to case. authenticate the proceedings civil must be case, in a in so a. equally criminal one. The verity record is of as much importance in one case other.. is a question and it would seem if practice; .This that, any in the practice one court can considered point as set- one must tled, this be so considered.

In progress next investigation, inquiry which is, seems naturally arise, whether this in is a case which a error may writ issued. twenty-fifth section act.

By 1789, it judiciary “that a final is provided, or decree in suit in judgment any the. court, of law or highest state, equity a decision in thé suit be had, could where is drawn question valid- TERM 1832. v. The State of under, an of, of a or or exercised treaty, statute ity authority their States, and decision validity; against of, or-where drawn statute validity question under, authority exercised ground constitution, laws; treaties, being repugnant the. va- the decision is in such their favour the construction

lidity; or- where is drawn question of, clause of of a or statute or constitution, the or treaty com- mission and the States, held decision is under, the United the or set against title, specially exemption, right, privilege, or clause the claimed under said up either party, such be constitution, commission, statute, or re-ex- treaty, court of amined, the affirmed, in the supreme reversed or States.” United a writ

Doubts have been whether to a error expressed not These doubts court is state limited civil cases. could Is not the a cri. arisen from section. have above reading is a suit, as a What but case, minal much a suit as civil case. it was the that can one inten-

a prosecution; suppose make a suit, in the word tion distinction using congress, a and a between civil criminal one. prosecution It is more that should be important to this given jurisdiction under the cases, in than in civil twenty-fifth court criminal Would it nót be act. inconsistent,, of the section judiciary law, revise letter spirit both judg- court, state in a matter of controversy of a ment respecting, asserted where decision a right against damages, States; but to the United deny the constitution or law of a in where character, case property, jurisdiction, and.life of a citizen may destroyed, liberty though protected solemn of the guarantees constitution? this is not an But it has since set- open question; long the solemn this court. tled above' adjudications cónstruction, therefore, is both on sustained principle and. au- towell the section crimi- apply thority; provisions The. treaties, cases, constitution, or laws where the nal to civil state; come with the laws States in conflict of-the United court. of the the latter sustained decision It has been no arrest said, that court ean SUPREME COURT. Georgia-] v.'Thé Slate of a tribunal enforcement of the state proceedings true, criminal of the state. so laws This is undoubtedly, long court, as a state not in- laws, the execution of its penal some or constiiution of fringe upon the United of the law treaty union. a state for an

Suppose should officer make penal' United States it's his duties within discharge jurisdiction! as, for instance, or a customs, a land officer,-an officer postmaster, the offender punish by confinement could penitentiary: "of court supreme .interpose power, arrest reverse ? Cases of this kind so' proceedings are palpable, they need to be stated to only assent gain every judicious mind. would And not this ad- interference with ministration ? criminal a státe laws This court have decided, no havé repeatedly ap- in criminal cases from the courts circuit pellate jurisdiction States: writs of error appeals given, courts civil cases. only But, those even in those -courts, áre where divided on judges case, criminal point, bemay before .point court, thitf brought under a general cases in division opinion. o.f provision is taken in the cáse' Jurisdiction under consideration exclu- the of the provisions section of the sively by law twenty-fifth been has These as quoted. been re- provisions, .has marked, indiscriminately, to criminal apply, cases, and civil wherever,a is claimed under the constitution, right treaties, or States, decision, and the the of the United by laws state court, case, such In the the is decision-was right. present against thé set defendant, and it was' -right expressly up by the against the made by highest judicial Georgia. tribunal .in case, To such a court need look no give jurisdiction to ascertain thus than whether further was the right; asserted, case is the state The by decided court. clear diffi- against culty this point. in this .case, name state used be- is Georgia jn

cause the the such cause state was to the designation given court. state, No one in its ever that the supposed, sovereign a form capacity, case, in such is to the cause. party TERM v'. The State it was in the here must.be same state the the as prosecution used, isit matter so as the state is but far name the court; was court, notice given a rule of this of form. Under because the attorney-general governor exe- -of the state are laws their to see that the part duty cuted. union,

In laws the of the penal prosecutions violations manner. States used .the same name of in law, a federal Whether the prosecution constitutionality the’ defendant question has right law. pass doubt exist as

Can any congress case? in this Since its is taken law, under which jurisdiction land; has been has been the law 17S9, it passage, in this court, of decisions course an uninterrupted sanctioned by tribunals, a soli- the state with perhaps by acquiesced national whenever the attention tary exception: their sanction subject, called has been legislature approach as a majority so law by large given almost to unanimity. as there can be little doubt as of of this

Of act policy it. pass congress formed, not, the United The constitution contended, some have people my opinion, others, .nor, as but states; a combined limit- exereised delegates, people, through power, sanctions, to in their states. ed respective from the people, Had the constitution emanated to,, had districts, been referred merely states convenient ascertained, could public expression popular the union would have been the vote rule for throughout only the constitution. This course pursued; adoption fact, it fundamental our law clearly appears suffrage exclusively, of. formed, by the was not popular people. to the

The the limited states respective vote of people there was an ex- resided. it appears So they sanction, most happily and state pression suffrage popular the union. united, in the the constitution adoption exist, as the differences of Whatever means opinion Yol. VI.—3 W COURT. SUPREME Slate of there would seem to adopted, constitution which the

by conferred difference as powers no for any certain ground it. by were estab- co-ordinate government

Three branches executive, These branches lished; the legislative, judicial. free'.government, essential to are existence possess co- their powers, spheres, should respective they other. with each extensive will him to not'powers

If the enable executive office, of his essentially system execute functions must, case, in such defective; those discharged .duties branches. This would that balance destroy One be essential existence of admitted free which is gov- ernment, thé wisest and most statesmen of the enlightened day. present

It is not less that the should be power legislative important branch appropriate government, (cid:127)exercised than duties should that the executive devolve upon proper fuñe-. And if the fall Short of tionary. judicial power effect giving union, to' laws of the existence federal of. govern- end, at an ment is vain,- in vain,

It is worse that the than national if laws, enact thdse laws are to remain legislature upon book imbecility statute monuments national It is vain that the executive is' called to power. superin- of the laws, tend the if he execution have no to aid in enforcement. (cid:127) are, in weakness and no Such folly degree; chargeable whose distinguished through instrumentality-th,e men coRe- stitution was is true, formed. an- given, power^ no limited;' and which are not powers,, can expressly given, exercised the- federal bp government: but, where given, Within supreme. sphere allotted them, the co-ordinate branches revolve, un-. general government obstructed by any legitimate-exercise power by , The governments. powers exclusively- to' federal given are limitations" the state upon But, authorities. with, the exception pf these limitations, the states are supreme; átíd their can be no sovereignty more invaded action of -the general government, the action than state;govern- mentp arrest m .obstruct course the national power. TERM 1832. 571 State The

[Worcester asserted the is It has been government federal foreign and that it must to the state consequently governments; Such an not could resulted -to them. opinion hostile the which from a principles thorough investigation great at of our The lie federal system. foundation is to the hostile neither state nor is it tp foreign governments, them. It from is un the same as much people, proceeds der as the their state governments. control

Where, constitution, is ex- power legislation vested for the clusively they congress, legislate people union, and are the their acts are as constitutional binding a on the enactments of state of the state. people legislature If so, would existonly the federal government monument of human name. Instead the proudest being frail memorial of it be the wisdom would and patriotism, of its framers. mental imbecility ignorance duties, his ex- In constitutional federal discharge union, the same as a acts of the gov- ecutive the people upon duties, his state, ernor of acts upon a in the performance of the And the state. people judicial It States acts in mánner on the rests people. qpon same of the the same basis as other departments government. source, from same of each are derived powers instrument. have the same They same

are.conferred and extent. limitations a to when effect state, required court supreme give constitution, a state, will statute examine be re- if act maintain, are sworn to see

they legislative the. exist, the statute must it; and if repugnancy pugnant law. paramount yield tribunal

The same principle-, supreme governs of the United No one can constitution that the deny, union. no land; consequently, is the law of the supreme which is repugnant act of state or of legislature, congress, it, be of can validity. con- Now an act repugnant state if legislature void; it declare will stitution of the court union, or a if such act be to the constitution repugnant be the constitution, law declared made under And, void? supreme land, law of the not equally COURT. SUFREME Georgia.! State v. The circumstances, should shrink if court discharge such land, lasv supreme effect-to their giving duty, oaths, to the con- prove traitors violate would claim,to the conñdencé? stitution, public and forfeit all just if declare federal It is sometimes judiciary objected, void, it is because act of repugnant a state legislature a States, it the of United places constitution the legislation the same And the this court. might state within power aof force the exercise be with equal argument urged against an court of state. Such the a argu- power, by supreme similar constitutions, and the end in destruction all ment must the like will of the acts of of Greát the the parliament legislature, land. Britain, the law the supreme, only must that it so It is to investiture power guard impossible therefore, may not, form, in some be abused: an argument, abuse, the to because is liable against, power', exercise would the destruction all go governments. of this court are not constructively, powers expressly, constitution; the and within this power, given delegation court are the court the of the United supreme people States, are bound to duties, and they under the discharge state; same as the court of a supreme and are responsibilities the equally, powers, within.their court of supreme people of each state.

When this court are required enforce laws of they those laws. governed by So do adhere closely they to this rule, that during present term, a of a cir- judgment cuit court States, United made in decisions pursuance of this court, has been reversed annulled, because .it did not conform to the decisions of the a court, state giving construction a law. local But while this court conforms to those of decisions the state courts, on all questions arising (cid:127)under statutes and constitutions states, of the' respective are bound to they revise if decisions, correct those annul, either constitution of the United or the States, laws made it. under It appears,-then, that on all laws questions under the arising a state, decisions courts such state form rule

for the decisions of this court, and that on all arising questions under the laws of the court the decisions of this TERM State of v. The courts. Is there any state rule for the decisions form federal, well in this? Have unreasonable thing then courts, Why people? constituted the hostile be deemed other, than one tribunal more should interests of people. constitution, of the third article In the second section shall extend declared, it is- power that judicial constitution, the cases, in law equity, arising made, or which shall States, and laws of the United treaties tinder their made, authority. l¡e case, shown error will that writ' of

Having certified, record has been that the the next duly inquiry relate is, acts of what are the the United States arises (cid:127) Indians and the óf and were acts Georgia.; the federal con- acts sanctioned by these stitution? the enumerated contained powers

Among congress, constitution, it is de section of the first article eighth u shall have commerce dared congress regulate nations, tribes.” By Indian among foreign confederation, which on the 9th day articles adopted States, in 1778, it was that the United provided of July “ shall sole and exclusive assembled, riglff also have congress struck, value of coih and and power alloy regulating states; their own that authority, respective fixing- standard of and measures weights throughout the. with

States; of all affairs trade and regulating management Indians, Provided, that of the states: of any members limits, within own legislative right or violated.” infringed 1775,

As June of the arti- early before the adoption confederation, cles consideration took into congress their of Indian Indian affairs. The was divided subject country into was dépaijtmerrts, three .superintendence each committed to commissioners, who were to hold authorised treaties with the Indians, make disbursements of for money use, their and to various.duties, discharge designed preserve and cultivate a them peace friendly towards feeling No person was with- permitted with them colo.nies. trade SUPREME COURT. 574: v. The State out alicense one or more of' commissioners departments. respective 1776, resolved, it was April that the commissioners In “ them, the middlé

Indian affairs one of department, salaries, reasonable employ, desired minister to reside Indians, Delaware and'instruct gospel, among master, them Christian a school to teach religion; arithmetic; blacksmith, also, reading, writing, youth (cid:127) do the work intercourse general Indians..” the Indians to be continued under the superintend- managed of the continental ence congress. Qn the 28th of November treaty Hopewell formed, which first made with treaty Indians. re- The commissioners! of the United States were North to the notice executives quired give Virginia, Carolina,.South Carolina order each might one or more to attend the but persons treaty, appoint had no to act ort the occasion. seem to In this it is the commissioners treaty stipulated, pleni- “(cid:127) assembled, of the United States in potentiary congress give Cherokees, and to all the them into the receive favour peace America, on of the United States of the follow- and protection conditions:” ing

1. The Cherokees restore all property prisoner's- the war. taken during States to The United restore the Cherokees prisoners.

2. themselyes to The 'Cherokees be under 3. acknowledge of no States, the United sovereign protection whatsoever. citi-

4. The line and the between Cherokees boundary of the United States .to was-agreed designated. zens Indian, upon intrude If any person, riot being on it, settled Indians, or, allotted” being land ratification of the six months after the refuse to remove within of the United he forfeits the treaty, protection to him think Indians were at as they liberty punish might proper. 6. United States The to to the are bound deliver up Indians crime, or other Indian who commit

any robbery, capital shall on a within protection. white their person living TERM 1832. State of be committed on . same offence an Indian a If citi- 7. States, ishe to be punished. of

zen of understood punishment innocent, 8. .It retaliation, is of and shall idea not be unjust, prac- side, where there a except either manifest on violation tised first, then it shall be a demand preceded, this treaty; refused, and, a declaration of if then hostilities. of justice; Indians have full confidence in the justice “That interests, their have States shall respecting of the United choice, a of their think deputy whenever they a send congress.” n fit, to. Holston-was entered into with the same peo- treaty 2d day July on the ple, -Cherpkees a treaty peace, This was again under-the themselves protection placed hold no treaty power, indivi- foreign engaged individuals state. Prisoners were dual on both sides; be delivered new Indian boun- up agreed fixed; and land made -a cession- was the United dary of a consideration. stipulated on payment road, free, unmolested wás agreed A given through lands, and the Indian free Tennessee navigation that the It United States should was agreed river. trade, their and a solemn regulating

exclusive right guar- land, ceded, was made. A similar antee provision, made, offenders, and as punishment was all-per- the Indian who enter was contained in territory, sons might Also, retaliation shall Hopew.ell. reprisal thé treaty committed, until satisfaction have been demanded not be of the aggressor. ordinance, On the 7th day August regu- repealed lation Indian affairs former adopted, which system. Cherokees, with the 1794 another treaty

In made the treaty which Wasto into effect Holston.- carry object 2d of October 1798, on Tellico, And the plains CheroKees, in another treaty, give right way, agreed direction, lands. Other in certain over their engagements also not be referred into, which need to. entered Yarious treaties were made the United States with SUPREME COURT. 576 Georgia.] State of [Worcester which, other Indians, by among arrangements, on. procured were and boundaries of territory agreed cessions is 1817, wish by in a expressed In made . a'treaty distinct a form Cherokees, assume government, to regular more a the United States. By in are encouraged they 1819, 27th day February at treaty held Washington, for Cherokees a school of land is made a reservation States sold the United fund, to be surveyed that all white for that And was persons, purpose. agreed, lands, who had the Indian should be removed. intruded on To the power to various'treaties with people, effect give exercised; frequently executive atone to a firm determination expressed time General Washington the Indian intruders from force to remove military to. resort territories. to re-

On of March an act the 30th passed congress tribes, Indian trade and intercourse gulate on the frontiers. preserve peace or

In this act it is citizen resident provided, hunt, States, who shall enter into the Indian or lands license, to a .without shall be 'any purpose, subject if And shall any person attempt fine and imprisonment. lands, the Indian he shall be liable or actually survey, survey, .dollars, and be one thousand to. not forfeit sum exceeding No twelve months. per- imprisoned person exceeding boundaries, reside as a trader within the Indian mitted or All a license permit. un- persons prohibited, without lands; from the Indian a heavy penalty, purchasing der And it is made such are declared to void. purchases for the to arrest force of the United lawful military of the act. offenders provisions against section, it is the act seventeenth shall provided, By toas trade intercourse “prevent any not be construed so. on lands settlements surrounded Indians living States; within the the'United being ordinary citizens states; or the individual unmolested jurisdiction road, district district, from Mero or to Washington use of Tennessee from citizens said repair keeping prevent Nor to be so road.” was the act construed as to prevent per- settlement, from .sons to Price’s Knoxville travelling TERM v. The State which usually the tract provided they path .travel if do but travelled, they and the Indians object, object; road after proclama- then all on this prohibited, travel tion under the act'. penalties provided president, view, acts, were passed Several the same object having before, or one; but as either prior repealed no- need not be 1802, act of. their provisions specially ticed. error

The in acts of the state of which the plaintiff Georgia, constitution, treaties, of, as complains being repugnant and laws of the United found in statutes. States, are two 1829; and is first of act the 12th December passed the char- entitled an act within to add the territory lying tered limits of and now occupancy Georgia, Gyvin- Carroll, Dekalb, Indians, Cherokee to the counties of Habersham; and to extend the laws"of the state over nett all laws same, and to annul made nation the Cherokee ithe for the Indians, officers provide compensation in and to the tes- said process territory, regulate serving legal Indians, and to ninth section of the act timony repeal 1828 on this subject.” Indians, This act annexes the within the' territory in the title; limits of the counties named and ex- it. It tends the state over annuls the laws, jurisdiction ordinances, kind, orders made regulations, any Cherokees, either in council or in any way, not be are evidence courts permitted given law, Indian, of an no or the descendant By Indian, state. Indians, nation of within the Creek or Cherokee shall

residing court of witness be deemed competent state, to be a which white such party, except white person per- a, the nation. Offences under the son reside within act some be confinement in the cases punished by penitentiary, less more than in others than four nor six years, four exceeding years. second act was on 22d passed day December

1830, and “an entitled act to the exercise of as- prevent sumed pretext of power,- by persons, arbitrary laws; from the Cherokee Indians arid their authority white persons prevent from within part residing VI.—3 Vol. X SUPREME COURT. State of v. The Indians; the Cherokee limits Georgia, Occupied

chartered mines, for the and to protection guard gold provide the laws the state within the aforesaid terri- and to enforce tory.” act, of this first section it is made a

By penitentiary 1831, 1st offence, after the day February or any person colour or from the said pretence authority persons, tribe, headmen, or as chiefs or warriors of tribe, Cherokee said means, the to cause or procure, by any assembling or other Indians; council pretended body the said legislative &c. for the purpose legislating, laws, They prohibited courts making holding or And all white executing process. after the justice, persons, of March who shall 1st reside within the limits of the nation, or without a license permit from his excel- or from such as his lency agent governor, excellency such' shall authorize grant permit license, governor taken the oath shall not hereinafter who required, misdemeanour; and, of a high upon conviction there- guilty of, shall confinement punished by at penitentiary labour, for a term hard not less than four years. From of the United States are agents punishment, excepted, white females, and male children under twenty-one of years age. obtained license,

Persons who have are to required take the “ oath: A. B., do following swear, that I solemnly will defend the constitution and laws of the support state of demean as a myself and uprightly citizen thereof. God.” me So help

The is to authorized governor organize guard, which shall consist of more than the to sixty protect mines persons, in Indian the and the is to territory, authorized guard arrest all offenders,under the act.

It is these laws are apparent repugnant treaties Cherokee Indians with the been referred to, which have and to of This the law 1802. so is made clear repugnance an ex- acts, hibition force of respective that no demonstration make it more can palpable. States, treaties laws of United are

By the' rights territory Cherokees, it guarantied both respects and internal of are polity. these By laws rights Georgia TERM State of abolished, abolished; but an only punish- ignominious Indians and others; inflicted for the ment is exercise stand, then arises, them. The important question or the laws the laws United No Georgia? construction, rule of an an- subtlety evade can argument, so be, swer to must far as this response question. concerned, in error favour

punishment plaintiff the one or the other. Not the full momentous would subject, weight .feel de-

evidence an of that high responsibility.which ignorance member, tribunal, volved humblest upon upon a decision in this case. giving in force? cited,

Are the treaties and been law have on the federal what, if do they any, impose obligations, within the limits Georgia? A reference made to policy affairs, States on Indian before the subject adoption constitution, with what view ascertainiiig light acts, Indians been considered first official them, States. relation For this object, not be might how notice improper considered inhabitants, who first European formed settlements in this part continent of America.

The abstract section of the human race to a right every soil, reasonable which to portion acquire means subsistence, cannot And it is be controverted. equally clear, tribes, who of nations exist in the range hunter state, within reasonable be restricted limits. They roam, in the shall not be permitted pursuit game, over and rich whilst in' country, extensive parts, human so crowded as to closely render beings together, the means nature, subsistence The law of precarious. which is para- laws, mount to all other nation, every gives enjoyment of reasonable extent so as to country, derive the means of subsistence from the soil. In this ancestors, our view when first perhaps, they migrat-

ed to this country, taken possession have limited might extent of the domain, had been' they sufficiently powerful, without negotiation purchase Indians. But native this course been believed taken. A have nowhere more COURT. SUPREME

58P Georgia.} v. The State of and one better which was mode conciliatory preferred, Indians, who were then powerful, impress calculated white their (cid:127)with sense justice neighbours. lands of their was never assumed,.except upon occupancy contract, and on the of a valuable considera- payment basis tion. from the earliest This nas obtained settlements

. white policy down to the time. Some cessions present country, .in Indians, been made in by have compliance territory may whites; but with the terms on was offered peace taken, taken soil, wras the laws thus of conquest,, war, as an for the commenced always indemnity expenses the Indians. no time has the been At country recog- sovereignty Indians, nized as but been always have existing admitted All possess many attributes sovereignty. t<? to,self been rights belong recog- nized them. Their never vested right occupancy been but fee the soil has been considered questioned, This government. called to the ultimate domain, but Indians have a present right possession.

In some' of the old states, Massachusetts, Connecticut, Island others, Rhode small where of tribes re- remnants ' main, surrounded white’ their who, population, numbers, had reduced lost the of self power government, the state have laws of the been. extended them,.for over the pro- persons tection property. of the constitution, adoption

Before the mode of treating the Indians was various. After the formation confederacy, was placed under subject superin- special Colonies; tendence though, subsequent time, may have occasionally into treaties entered between Indians a state neighbourhood. It is not consi- be at dered important into minute go inquiry this subject. By constitution, of commerce regulation among s tribes is

Indian given This must congress. power be con idéred as exclusively vested ih as the to' congress, ’ regulate commerce with nations, to coin foreign money, 1832- TERM 581 Georgia.] v. The State of

[Worcester It is in war. enumerated offices, and declare establish post apd class to the same powers. section, belongs .'same in the regula- has been exercised investiture o°fpower This and, treaty, sometimes Indians, with the tion commerce .of In respect enactments times, at. congress. other with but few authority, the federal have been placed by; they nations. as same footing foreign on the exceptions, are more than compacts, these treaties nothing It is said that on the United as obligatory cannot be considered enter into them. the Indians to from a.want power a is, it is formed a What compact treaty? answer self communities, between two right_of nations having government. the same attri-'

Is shall possess it essential each party This will .to force to butes treaty? give sovereignty, for, not be few valid treaties very on pretended: ground, is, could be that each con- formed. requisite only of self shall government, parties possess tracting right stipulations treaty. perform constitution, Under the state can enter into any no treaty; that, its no state, believed since adoption, (cid:127) own a held Indians. authority, treaty a admitted, It must be that the Indians sustain re- peculiar constitute, do not States. They lation to the United state, term, last so as at the decided claim foreign sue in court supreme States: right sense, self some yet, they, having right government, concerns, a state. their internal form In management They are un- punish offences dependent on.no they power. and, laws, so, own der their doing responsible they war, They.make no tribunal. and form treaties earthly of these The exercise and other to them powers, peace. gives them, character as a distinct constitutes people, some they admitted respects, although possess soil. right treaties, By various the Cherokees have themselves placed under States: protection agreed to trade other with no invoke the nor to protection people, do not B.ut such sovereignty. divest engagements SUPREME COURT. v. .The State of

them self nor government, destroy capa- enter into city to treaties or compacts. sur-, state is more or less

Every dependent those which round.it; but, unless this dependence extend so far existence of political into merge protected people of their still they may a state. protectors, They constitute exercise powers and bind relinquished, themselves as a distinct and separate community.

The used in treaties with language tire Indians should never' he to their construed If words be made use prejudice. which are of a more susceptible extended their .than meaning as connected plain import, with the tenor of the they treaty, should be considered as used only the latter To sense. ee lane, contend the word allotted,” to the reference Indians in treaties, certain guarantied a favour indicates conferred, rather than a right would, it would acknowledged, dome, seem to the injustice understanding parties. n How wére treaty understood this unlet w.ords rather than tered their people, critical should form meaning, rule of construction. The question may asked, is no distinction to be made a between civilized and savage people? Are our Indians to be upon with the nhtions

placed footing with Europe, whom we made treaties? have (cid:127) not, what station shall inquiry now be given' Indian tribes our but, country?, what relation have they us, sustained since commencement of our government? them; treaties with and are those We have made treaties on our because part, into disregarded .entered uncivilized Does this the obligation people? .lessen of such treaties? By into them, we not admitted have entering of this to -bind people themselves, power impose ob- us? ligations senate, except ai\d president treaty-making enter into Indians, cannot or with compacts

power, This nations. exercised in been foreign uniformly treaties with the Indians. forming differ that of condition,

Nations each- the. time, same but the nation may change by revolutions TERM State of v. The rest They same. upon base of justice principles of time. will remain endurance beyond since than treaties with forty years of more After lapse ratified by solemnly Indians general govern- have their the nu- ment, it is force. Have binding too late deny them, been formed with and the treaties have merous and senate, been more ratifications nothing president than an idle pageantry? with the Indian tribes, treaties w.e have ac- numerous

By of incalculable territory, accessions value quired we union. claimed Except by compact, have even a right the Indian We have way lands. through recognised .in No one to make war. them the has ever supposed commit treason could the Indians States. against them of treaties; We have violation punished but we bn inflicted them a nation, punishment have and not on offenders them as individual among traitors. executive,

In the branches of our legislative, judicial admitted, we the most solemn sanctions, government, existence of the Indians as a separate distinct people, and as vested being which constitute a rights them state, .or separate but a domestic foreign, community —not to the community as but as ex- confederacy, belonging —not and, it, of necessity, .within to it a isting beáring peculiar relation. can the But, treaties which to, have been and the referred 1802,

law of be in force within the limits considered n state of Georgia? cession, made (cid:127)In act to Georgia, 1802, States, in of all lands claimed her west of the line of the conditions was, “that designated,.one the United States shoald, at their own expense, for the úse extinguish, the same cán early obtained, be Georgia, as. peaceably terms, reasonable Indian title' within state of lands Georgia.”

One of counsel, in argument,, show, endeavoured that no part country now inhabited Indians, is within what called the chartered limits of Georgia. that the

It charter of appears was surrendered Georgia SUPREME COURT. v. The State trustees, that, like the state of South Carolina, she became a regal colony. was, effect change authorise the crown alter the boundaries, in the exercise of alterations, discretion. Certain seems, it were subsequently made: but I do not. can conceive it be of any importance enter into a minute -of consideration them. Under its char- . ter, observed, it be that may derived a Georgia right' soil, to the Indian title, by subject act occupancy. By the cession, a certain Georgia designated line as the limit of that cession, line, and this unless altered, with the subsequently assent must interested, parties be the boun- considered as of the state of dary This line Georgiá. thus re- having cannot contested on cognized, any question in- arise for cidentally decision. judicial It is on this part the.case, to ascertain important, inwh'at has considered Indian title lands, light Georgia generally, wi.hinher own boundaries; particularly, also, as to of the Indians to the right self-government. she

In the first was to all place, the treaties entered party Indians, between United States and the into sipce adop- the constitution. And tion of to that prior period, she them, bound represented making provi- she sions, it is remonstrated against the although alleged In the of the intercourse law of treaty passage Hopewell... 1802, union, one she constituent was also .parts a party. made cession, in her act of the United stipulation the Indian title lands should within the extinguish was a distinct the federal recognition right to make also, that, until extinguishment;

government, made, the remain should would occupancy Indians. the state for law of land In a opening it is declared purposes,” passed office void; Indian on lands were a fine made null surveys that which, on if not person inflicted the the survey, making the,offender, he was'punished by By by imprisonment. paid a act, Indians, a which was fixed for subsequent line'was between them and the whites. A similar boundary provision Georgia, passed in other found laws of before the adoption is JANUARY TERM Georgia.} v. The State of 1787, of the constitution. act of By severe corporeal pun was inflicted those made or ishment who to attempted make “ line surveys, beyond the Indian temporary designating hunting ground.”

On the 19th November 1814, the resolutions following adopted by Georgia legislature. “ Whereas, many state, citizens re- without to treaties between Indians and the gard existing friendly States, to the interest and contrary United good policy - over, have frequently this' gone,' going -are. lands allotted to In-

settling friendly cultivating the dians for their state is means the ground, by hunting but consider- only services army, deprived and oür- able feuds are between us friendly neigh- engendered Indians: bouring “ therefore, Resolved, the senate and house by repre- met, sentatives the state assembly general Georgia to be, requested his hereby excellency, governor, remóyed off the all intruders means necessary have take lands, taken and that Indian proper steps prevent future aggressions.” 1817, to take

In refused steps legislature dispose Indians, until the lands by treaty acquired treaty and, resolution, senate; been ratified gov- had the line run the' between state of was directed ernor Indians, to the late treaty. and the according Georgia 1819, under a recent done the-year thing again same treaty. United In a president memorial “ it has say, long

legislature be extended settlements should her the desire Georgia, soil within her bounda- limits.” to her ultimate “That control; and, that her police ries her should be subjected be fixed and permanent.” should organization and government “ jurisdiction That the claims Georgia right limits;” admits, She her within territory soil to be however, perfected remaining that the inchoate— title; the States, in Indian the extinction vice hac as their agents.” juro the act was also acknowledged The Indian title distinctly Y Voí.. VI.—3 SUPREME COURT.

586 Georgia.] The State of [Worcester of 1796, the Yazoo act. is there declared, It repealing lands, to reference certain are the sole they property state, the to the of the only right of the United subject treaty to enable the state under its purchase, pre-emption same;” also, the title the right, Indian that the land “ stale, the the vested whom pre-emption same the only belongs, subject controlling power the , United Stat'e to authorise treaties arid to for, superintend the This same.” it will Observed,.wasused language, long before act of cession.

On the 25th of March issued governor Georgia proclamation: following it is «Whereas said that the provided treaty, United Indians shall protect incroachments, against hostilities, whites, of the impositions so that suffer no they molestation, or in their imposition, injury persons, goods, or effects, their the lands dwellings,' until occupy, have been acomplished, removal to the terms according which had been of the treaty,” made with the recently In- dians.

“I,have'therefore to issue proper thought this my procla- citizens mation, persons, warning or Georgia others, lands intruding upon trespassing occupied by the against limits either for within Indians, Georgia, purpose of otherwise, such act will be in* settlement ever}' direct provisions aforesaid, treaty violation and will the most certain aggressors expose summary punish- authorities of ment, States.” citizens, therefore, pursuing «All good dictates'of good unite in faith, will enforcing obligations treaty, as law” &c. supreme references he made to Many might acts of public to show that Georgia, she admitted the obligation treaties, but above are believed to of Indian be sufficient. acts,do honour to the These character highly respect state. able Under, of cession, the act were bound,, State? faith, to lands the Indian within the extinguish title good so soon as it could done péaeeably limits reasonable terms.

/

JANUARY TERM 1832. v. The State of The state remonstrated to Georgia repeatedly president and called subject, .on t.he upon lake necessary to fulfil its steps She com- engagement.

plained that, whilst the Indian title to immense tracts coun- within, had try been elsewhere, the extinguished limits but little had Georgia made; been progress and this was attri- buted, either ato want of effort on the of the federal part gov- ernment, or Indiaqs. to the effect of In towards the policy one or more of to treaties, the titles in were fee.simple given the Indians, to certain land; reservations of was com- plained of, as a direct of the condition by infraction Georgia, It cession. has asserted, also been the policy government, the cause among civilization advancing the Cherokees, and them to the forms of assume a inducing regular and of life, civilized calculated to government increase their attachment to the soil to they inhabit, and render difficult, of their more purchase title if not impracticable.

A full of this considered as be investigation subject within the strictly scope judicial inquiry belongs to the present But, extent, case. to some it a direct bear- on the before the court; it show how ing question tends to construed her Georgia public rights powers functionaries. States, the United by every first

By president solicitude has been one,. a for the strong expressed succeeding Indians. Through agency gov- civilization ernment, induced, been have some partially parts union, huntér state that of the to the. change agricul- turist and herdsman. Mr Jefferson Cherokees,

In a addressed to letter 1809, 9th of he recommends them to January dated adopt be that crimes punished government, might regular pro- He out the mode by which a points council perty, protected. chosen, laws; who should have enact

should he also recommended the execu- appointment judicial the law tive whom enforced. through might agents, them, resided was re- agent who government, among council, commended to be associated with their he that might on all their give necessary subjects gov- advice relating ernment. SUPREME COURT. v. The State

In the treaty Cherokees encouraged adopt form of regular government. time, Since that a law has an annual been passed making dollars, as a the sum ten thousand school appropriation (cid:127)fund, which has dis- for the education of Indian youths, had been tributed tribes where different among s.chools Indians established. have also labours Missionáry among been sanctioned permits, government, granting work, those who were in such to reside disposed engage n inthe Indian country.

That means re- adopted by general claim life, from his erratic him to assume induce savage civilization, forms to increase the had a tendency inhabit, now attachment the Cherokees country they the difficulty and that increased extremely probable; lands, act of cession the purchasing gov- general do, ernment probable. agreed equally cession nor the United when Neither in the ex- made, should be used that force contemplated be pro- that it should tinguishment title; the Indian nor of. But, cured on terms are not it not that reasonable. may be said, truth, it was that not either contemplated by equal obstructions to the fulfilment of the that any party compact allowed, sanctioned, less much the United should be States? by of the humane towards these chil- policy government must afford of the wilderness pleasure every dren benevolent efforts made as proved if the have successful feeling; been done. still much has Whether was anticipated, been held of this should have by out policy advantages limits of to the within the Cherokees Georgia, for them to their residence and an inducement fix it change means to elsewhere, than such increase their rather attach- home, on, as has been is insisted present ques- ment to be considered another of the tion which branch gov- have Such a course secured perhaps, ernment. might, realized all have advantages Indians of the have paternal .government; superintendence terms, to it, comply on reasonable enabled peaceable act of cession to the 1802 who Does the law Indians apply intercourse TERM 1832. 589 v. The Stale ? The nineteenth section the limits live within Georgia “that it shall not construed prevent act provides, landp sur- with Indians trade intercourse living any States, of the rounded the citizens settlements'of indi- ordinary within being jurisdiction ? This it has been excepts vidual states provision, supposed, lie within from the law the Indian lands operation this construc- A moment’s will show that state. reflection tion most erroneous. clearly act,

To constitute exception provisions Indian must settlement, at the time its passage, the United surrounded settlements of the citizens within the within state; not only ordinary jurisdiction the limits of a of its common exercise but within jurisdiction. that, will one Chero- pretend No situation was the indeed, kees who lived within or, 1802; state of Georgia is their em- such If, then, situation. present they are.not braced all of the act exception, provisions to them. apply

In the section it is very contains pro- the exception, vided, that the district use the road from Washington Mero district Ten- should citizens enjoyed, and that the nessee, under the the road orders governor, might keep section, in the same repair. And of the Ten- the navigation nessee reserved, and a river frotfi Knoxville travel settlement; to Price’s the Indians should not provided object.

Now, these relate to the Cherokee country; provisions and can one, it be that such would by any provisions supposed, have been act, if made in the had not considered it as congress to the Cherokee in the state applying country,, whether or in the state of ? Tennessee to those exception applied, exclusively, fragments of tribes which states, and which came several found in literally within the used. description

Much has been said of an independent the existence against within a power has been state; the conclusion sovereign drawn, that the Indians, cannot as a matter enforce right, their own laws a within the territorial state. limits refutation of this is past history. found our argument SUPREME COURT. State v. The tribes, lost the

That fragments self-gov- having of a ernment, and'who lived within the ordinary jurisdiction laws, has state, been taken protection have instance, where admitted. there has been no been But already have,been extended a laws over the state numerous generally Indians, within tribe exercising living state* recently. until self-government, right ever, laws, before her Has late Georgia attempted regu- true, Indian communities is late the within her limits ? It New her criminal the remains laws over York.extended state, within that for tribes more their than protection were These sur- n.umber, tribes were few in purpose. state of New But, a white rounded even population. believed, to York has never asserted the regulate power, of crime. their concerns suppression beyond not the this interior same independent Might objection with as much force as urged, have at power, since constitution? ever present, adoption Her claimed, embraced limits, chartered the extent num- great Indians, all of whom ber different nations of were governed laws, own them. only'to Has amenable of the Indiahs not this been the condition within Tennessee, Ohio, and other states? independent exercise of does power surely thiis not be-

come as it more assumes the basis of objectionable, justice forms Would it civilization. not be a singular argu- admit, so that, ment Indians long govern by rifle tomahayvk, and the their government may be tolerated; but, it must so soon as be*suppressed, it shall be administered of reason enlightened principles upon justice? Are those nations of Indians who made some ad- better, in civilization, neighbours than those vances. who are state? And still savage principle, théir within -of self government, jurisdiction the. same? When Georgia constitution, sanctioned the and conferred national legislature the to regulate exclusive com- right merce or intercourse with Indians, did she reserve the with the regulate intercourse within Indians her limits? will This not be pretended. If shch had been the construc- tion of her own powers,, would riot exercised? have-been TERM 591 v. The State

[Worcester her senators numerous treaties Did which have object tribes, with formed the different who lived within her been did boundaries? she acknowledged Why apply execu- union, the Indian repeatedly, tive title extin- between Indians and the guished; establish.a.line lands? Indian procure right way through of Indians, The residence laws, own by their governed of a state, within the limits has been deemed never incom- with state until And patible sovereignty, yet, this recently.

has been the condition of many Indians, distinct tribes of since foundation federal government.,

How is the varied question the residence the Indians of United territory States? Áre mot the United States their territories? within has And sovereign evet been con- one, the Indian ceived, by any governments, exist territories, are incompatible in the sovereignty union? state claims

A right sovereignty, commensurate with it, as the claim her territory;, their proper to the extent of the federal limits. This sphere, power, cases, exercised, not in in some but others. Should a invade the at its most country, hostile force remote boundary, become duty general government it would expel But it would violate the solemn the invaders. compact'swith cause, to Indians, without them of dispossess rights nature, and have been possess by uniformly acknow- federal government. ledged

Is it incompatible, sovereignty exclusive grant, to the federal over a number of acres jurisdiction ? Our land, military forts and purposes arsenals, though states, different are not their within situated jurisdic- tion. Does constitution United States exclu- give Indians,

sive intercourse with jurisdiction regulating to them over Is ? there given subjects doubt as to ? this investiture Has it not been power exer- cised the federal formation, since ever government, only without but under objection, sanction express ? states

The power to domain is attribute dispose public SUPREME COURT. of Georgia.} State Can new states sovereignty. lands dispose within limits, which are owned federal government? to tax also an but, attribute sovereignty; can. the new states tax the lands of the United States ? Have they

not bound themselves, not to tax the by compact, public lands, nor until after been years they five have sold ? May this they violate at discretion ? compact, not these be exercised Why may powers respective is, states ? The answer because parted have them, .with for the Why not a expressly general may state good. coin issue bills of- into a money, credit, enter treaty alliance or confederation, or with commerce regulate foreign nations? these been Because expressly powers have exclusively to the federal given government. as

Has not the been conferred on expressly power federal intercourse with regulate government, Indians; and exclusively given, is not as powers above no There enumerated? being exception exercise this on all it must operate Indians, communities power, exer- self-government; cising consequently, include within those who reside the limits of a state, as well others. Such has been the uniform construction of this power by the and of. every federal until government, government, the state of Georgia. raised question Under clause of the constitution, no political jurisdic- Indians, tion has been over claimed or exercised. The of 1802, restrictions law imposed by come within strictly trade; not as an incident, power regulate but as a part It is the same principal, power. and is conferred power, same words, has often been exercised in regulating trade with countries. imposed, been foreign have Embargoes acts, laws non-intercourse been have numerous passed, trade, restrictive under the commerce power regulate nations. foreign with, Indians, In commerce regulation congress a more than has exercised limited been exercised power in reference to The law acts ohr own countries. foreign upon zens, cit re- same as laws Indians, upon ferred to act in their commer- our own upon foreign citizens cial intercourse.

JANUARY TERM 1832. 59 v. The of Georgia.] State one, that, It will be doubted scarcely so far as the communities, Indians, as distinct have formed a connexion the,federal treaties; connexion government, such and is both This can- equally parties. political, binding not be that in except, upon questioned, ground, making n these treaties, the federal has transcended true, Such it is treaty-making power. objection, modern', invention, stated, but it is one of which arises out of circumstances; focal and is not to the uniform only opposed but to the letter and of .the also practice spirit government, the constitution.

But end to made, no the exer- there inquiry cise of limits of Indians within the over nature, is, that, The answer general government? it must be limited by .circumstances. or reduced in

If a tribe of Indians shall become so degraded the protec- of numbers, to lose the self-government, power extended over them. tion must-be necessity, of law, the local a state would by be power at this exercise point it be if indeed a considered: now judicial need not proper, be to arise in not seem case. Such a does question question. force, remain in full

So laws as treaties and apply long riglit the nations, within self-government, Indian exercising state, can no exercise power the discre- the limits of a judicial laws, effect those when to give questions tion in refusing them, unless be shall deemed unconstitu- they arise tional. the In- by

The exercise self-government power to be tem- state, contemplated dians, undoubtedly within.a the settled the policy is shown by govern- This porary. title, of their by especially ment, in the extinguishment It is a not state Georgia. question, with the compact do I but of policy. say, not.mean public of abstract right, affairs which should moral rule regulate that the same nations. or be communities life, regarded by should private Indian tribes does But, sound require a national policy territories, upon equi- states our should within exchange become or, amalgamated consent eventually, table principles, our political-communities. within can a independence limited At best very enjoy VI. —3 Z Vox.. COURT. SUPREME v. The State of boundaries, state, and a of a such residence must always . them to encroachments from the settlements around

subject state, within a as a them; and their existence in- separate-and seriously embarrass dependent community, may or obstruct If, state laws. therefore, be would in- operation of the states, consistent-with the welfare the social political permanent advance of their citizens, independent limits, exist within their must power should power give it, which surrounds its way power seek exer- greater cise of state beyond sphere authority.

This state can a only produced things by co-operation of the state and federal The latter has the ex- governments. and, clusive so Indians; intercourse regulation long as this exercised, shall it cannot be obstructed power state. It is a constitution, and sanctioned power given the most acts both federal and state solemn govern- ments: consequently, it will cannot be at abrogated state. lit is one powers states, parted vested in federal But, government. if contingency which shall render the Indians qccur, who reside in a either incapable self-government, moral degradation numbers, a reduction of their it would be in undoubtedly extend to them the government aegis of its such circumstances, laws. Undér agency ge- neral must necessity, cease. government, be the if it shall

But, policy government withdraw the Indians who reside within protection the limits of only who states, ánd claim the respective self it; but exercised uniformly laws and government, treaties which duties and on the impose obligations general should be abrogated by powers competent So as those laws and exist, do so. treaties long been having within, the of the federal sphere formed must be powers, they and enforced by appropriate organs fede- respected ral government. error, who this writ of prosecutes entered the plaintiff as it with the express country, appears, permission of under the the treaties of president, protection of He entered, law 1802. to corrupt substance; morals of but to nor to by their profit people,

JANUARY TERM 1832. Georgia.! v. The of State them, If

teach the Christian precept example, religion. he be of this if office; sacred had unworthy object he influence, than to coun- one if his professed; besought, teract the towards humane the federal policy government Indians, embarrass its efforts to comply solemn his engagement sufferings Georgia; though ishe not a illegal, proper sympathy. public object shown, It referred has been and laws the treaties within the due exercise the constitutional come powers conse- force, and federal remain in they full government; land. quently must be as the laws supreme considered These laws throw a shield Indians. They over the Cherokee to them their self-govern- guarantied occupancy, rights ment, and full those blessings might enjoyment the enactments But, in their humble condition. attained this shield is pieces the state broken Georgia, —the abolished, and their of the Cherokees are infant institutions is denounced Infamous against punishmént laws annulled. which have most those exercise Of

them, rights faith. to them national solemnly guarantied has enactments, however, the error no plaintiff Of these validity, except nor can he question complain, in' this In this view his interests. so far as affect they case, to in the present it become necessary, only, view those of laws the repugnancy Georgia consider union. laws, my province of these Of the policy justice the legislature by such considerations belonging to speak: doubt, been no enacted have, They they passed. whom and independent by sovereign right, under conviction recommended, aby have been and their policy years Thirty compact. sense of wrong to extinguish federal engaged since elapsed she has That of Georgia. within the title, Indian limits must be delay, arising of complaint strong ground are not involved admitted; considerations but such the government. to another branch case; belong present our power, law, which defines can look only We our duty. the path marks out a citizen laws administration Under SUPREME COURT. 596 Georgia.] State of [Worcester and, been of his liberty; the United States has deprived claiming States, laws he under treaties and the United the protection the it, as he has to makes make whether the question, is laws of under now he igno- Georgia, suffering are not to the constitution minious punishment, repugnant This States, the and under it. United and treaties laws made shown; what remains been only say, repugnancy local been often said this tribunal of the by has before that, in union, laws states many the repugnant being the made constitution of and to the laws it, no they can have in error force divest the plaintiff liberty. his property Mr Justice his dissented: that-in opinion, stating Baldwin upon error; the record was. returned writ properly court, the state and not returned by ought merits, of. he clerk said his court. As by him remained same as in the case was opinion expressed at the of the Cherokee Nation v. The State of last term. Georgia, Baldwin wasnotdelivéred opinion Mr'Justice reporter. cause on

This heard came transcript the. record from Gwinnett, for the in superior county court state counsel; on considera Georgia, argued whereof, .Court, tion it is of this that the opinion act upon indictment legislature Georgia, founded, in this the constitution, treaties, case contrary States; laws and that in bar special plea said Samuel pleaded Worcester, A. manner afore said, constitution, upon treaties, and laws of relying aforesaid, the United is a bar good and defence to the indictment, said Worcester; the said Samuel A. and as such to have been allowed and admitted the said ought bjr superior for the of Gwinnett, court in the state county be Georgia, fore which the said indictment Was tried;’ pending that there error said court superior of the state n so It is plea Georgia, overruling pleaded as aforesaid. therefore ordered and rendered adjudged, judgment TERM v. The State court upon the said superior premises, afterwards verdict upon pleaded Not plea guilty said Samuel A. Worces- Samuel Worcester, said A. wherebythe ter is to hard sentenced labour penitentiary and annulled. And be reversed Georgia, ought said court such as the superior render proceeding judgment rendered, it Court, of the state of should have is'further Georgia the said.supe- and that said ordered adjudged, judgment that annulled; be, rior is reversed court hereby be, awarded, plea is that special judgment hereby bar, so as sufficient plea aforesaid pleaded, good bar in law to and that aforesaid; proceedings indictme.nt said that the surcease; said indictment do for ever dismissed be, Samuel A. henceforth Worcester and hereby And therefrom, and he without day. thereof go quit special court, mandate-do the said superior from this go court, to into execution. carry judgment Geor- The State of Butler,

In case Plaintiff in Error court, the same special gia, judgment given mandate ordered court court superior into execution. Gwinnett county, carry judgment

Case Details

Case Name: Worcester v. Georgia

Court Name: Supreme Court of the United States

Date Published: Mar 18, 1832

Citation: 31 U.S. 515

Court Abbreviation: SCOTUS