These grants have been understood by all to convey a title to the grantees, subject only to the Indian rights of occupancy. Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) arrived at the Supreme Court in a political setting of uncertainty and potential crisis. But secondly, at what time did this people acquine the character of a state? To pursue this subject a little more categorically. Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. 2 Wheaton, 271. As this was one of the earliest treaties made with the Indians, its provisions may serve to show in what light the Indian nations were viewed by congress at that day. In this sense, Scotland before the union was foreign to England; and Canada and Mexico foreign to the United States. By this act it is made an offence punishable by fine and imprisonment, for any citizen or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country allotted to the Indians, without a passport, or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any friendly Indian, which would be punishable, if committed within the jurisdiction of any state against a citizen of the United States; thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any state. For the Cherokee nation is certainly not one of the United States. The bill states the grant, by a charter in 1732, of the country on this continent lying between the Savannah and Alatahama rivers, by George the Second, 'monarch of several islands on the eastern coast of the Atlantic,' the same country being then in the ownership of several distinct, sovereign, and independent nations of Indians, and amongst them the Cherokee nation. This shows the clear meaning and understanding of all the ceding states, and of congress, in accepting the cession of their western lands up to the time of the adoption of the constitution. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed. We must derive this knowledge chiefly from the practice of our own government, and the light in which the nation has been viewed and treated by it. Further cessions of land have been made at different times, by the Cherokee nation to the United States, for a consideration paid therefor; and, as the treaties declare, in acknowledgement for the protection of the United States (see treaty of 1798, 1 Laws U. S. 332): the United States always recognizing, in the fullest manner, the Indian right of possession: and in the treaty of the 8th of July 1817, art. 1. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. The language must be applied in one of three senses; either in that of the law of nations, or of the vernacular use, or that of the constitution. By the fourth article of the treaty of Hopewell, as early as the year 1785, 1 Laws United States, 323, the boundary line between the Cherokees and the citizens of the United States within the limits of the United States is fixed. Much of the matter therein contained, by way of complaint, would seem to depend for relief upon the exercise of political power; and as such, appropriately devolving upon the executive, and not the judicial department of the government. They have considered it competent, in its political and national capacity, to enter into contracts of the most solemn character; and if these contracts contain matter proper for judicial inquiry, why should we refuse to entertain jurisdiction of the case? The right of legislation is in terms conceded to congress by the treaty of Hopewell, whenever they choose to exercise it. No objection would certainly be made for want of competency in that nation to make a valid contract. 444, a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction. In a general sense it is applied to any person or thing belonging to another nation or country. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. No very important conclusion I think, therefore, can be drawn from the use of the term 'tribe' in this clause of the constitution; intended merely for commercial regulations. When Georgia is spoken of as a state, reference is had to its political character, and not be boundary; and it is not perceived that any absurdity or inconsistency grows out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee territory. I cannot strike these words from the book; or construe Indian tribes in this part of the constitution to mean a sovereign state under the first clause of the second section of the third article. That the Cherokees compose a foreign state within the sense and meaning of the constitution, and constitute a competent party of maintain a suit against the state of Georgia. Rep. 98; 3 Wheat. June 1775, and ending 1st September 1788, of which some extracts will be given. We perceive plainly that the constitution in this article does not comprehend Indian tribes in the general term 'foreign nations;' not we presume because a tribe may not be a nation, but because it is not foreign to the United States. In this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the union. Cherokee Nation v. Georgia (1831) was an important court case in United States history. We find nothing in the context, and nothing in the subject of the article, which leads to it. Thus, in the clause giving jurisdiction to this court, the term 'foreign states' is used instead of 'foreign nations,' a in the clause relating to commerce. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The nation had signed their first treaty with the United States, the treaty of Hopewell, in 1785, in which the union recognized their homeland in the middle of the State of Georgia. It laid the foundation for the unusual legal status of Native Americans today. This argument is imposing, but we must examine it more closely before we yield to it. But until this is done, the state can have no claim to the lands. I have endeavoured to show that the Cherokee nation is a foreign state; and, as such, a competent party to maintain an original suit in this court against one of the United States. 1 (1831). These proceedings it is alleged are wholly inconsistent with equity and good conscience, tend to the manifest wrong of the complainants; and violate the faith of the treaties to which Georgia and the United States are parties, and of the constitution of the United States. That the Cherokee nation of Indians have, by virtue of these treaties, an exclusive right of occupancy of the lands in question, and that the United States are bound under their guarantee, to protect the nation in the enjoyment of such occupancy; cannot, in my judgment, admit of a doubt: and that some of the laws of Georgia set out in the bill are in violation of, and in conflict with those treaties and the act of 1802, is to my mind equally clear. For the jurisdiction of a country may be exercised over her citizens wherever they are, in right of their allegiance; as it has been in the instance of punishing offences committed against the Indians. Marshall argued that the Supreme Court would not hear the matter because the Cherokee Nation wasn’t a foreign state. The cession alluded to is the one from New York, March 1st, 1781, of the soil and jurisdiction of all the land in their charter west of the present boundary of Pennsylvania (1 Laws U. S. 471), which was executed in congress and accepted. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it a foreign state, the Cherokee nation may assuredly with the greatest propriety be so considered. They relate to peace and war; the surrender of prisoners; the cession of territory; and the various subjects which are usually embraced in such contracts between sovereign nations. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes—foreign nations, the several states, and Indian tribes. The third article of the constitution describes the extent of the judicial power. The Court heard Cherokee Nation v. State of Georgia (1831) but didn’t rule on the merits of the case itself. Georgia argued that the Cherokee couldn’t sue to begin with as they weren’t actually a foreign nation – they had no constitution or meaningful central government. And the contest is distinctly a contest for empire. If they are not, then they cannot come here; and if they are, then how can we extend our jurisdiction into their country? If the clause excluding Indians not taxed had not been inserted, or should be stricken out, the whole free Indian population of all the states would be included in the federal numbers, coextensively with the boundaries of all the states, included in this union. If, then, the Indians claim admission to this court under the treaty of Hopewell, they cannot be admitted as foreign states, and can be received in no other capacity. Suppose when they occupied the banks of the Mississippi or the sea coast of Florida, part of which in fact the Seminoles now occupy, they had declared war and issued letters of marque and reprisal against us or Great Britain, would their commissions be respected? Certainly not by the treaty of Hopewell; for every provision of that treaty operates to strip it of its sovereign attributes; and nothing subsequent adds any thing to that treaty, except using the word nation instead of Indians. This principle is fully recognized by this court in the case of Massie vs. Watts, 6 Cranch, 157; when this general rule is laid down, that in a case of fraud of trust or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. The process of the courts of Georgia would have run into this as well as into any other part of the state. The foundation of this charter, the bill states is asserted to be the right of discovery to the territory granted; a ship manned by the subjects of the king having, 'about two centuries and a half before, sailed along the coast of the western hemisphere, from the fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing on any part of it.' Dartmouth College vs. Woodward, 4 Wheat. The complains is for a violation, or threatened violation, of the possessory right. No assurance or certainty of support in public opinion can induce me to disregard a law so supreme; so plain to my judgment and reason. It was necessary to confer it without limitation, to enable the new government to redeem the pledge given by the old in relation to the formation and powers of the new states. Mr Chief Justice MARSHALL delivered the opinion of the Court. 1. These instances are sufficient to show a direct, and palpable infringement of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. I shall not stop to inquire into the effect which a name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject matter acted on: believing it requires no reasoning to prove that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these national attributes, which are inherent in sovereign power pre and self existing, or confer them by their use, where all the substantial requisites of sovereignty are wanting. 8 Wheat. And where the right secured by such treaty forms a proper subject for judicial cognizance, I can perceive no reason why this court has not jurisdiction of the case. The provision in the confederation, Art. They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state, and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States. Again, by the act of the 21st December 1830, surveyors are authorized to be appointed to enter upon the Cherokee territory and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation improvements recently made near the gold mines. But this argument cannot bear the test of principle. The white folk wished to take their land, but these pesky natives were in their way. It does seem unnecessary on this point to do more than put the question, whether the makers of the constitution could have intended to designate them, when using the epithets 'foreign' and 'state.' In a commercial sense, we call all goods coming from any country not within our own jurisdiction foreign goods. The country, too, 'is consecurate in their affections from having been immemorially the property and residence of their ancestors, and from containing now the graves of their fathers, relatives, and friends.' The boundary allotted to the Cherokees for their hunting grounds' shall be as therein described. It can have no relation to local, geographical, or territorial position. But it is said, that we have extended to them the means and inducement to become agricultural and civilized. By the eighth article of the treaty of the 26th December 1817, 6 Laws U. S. 706, the United States stipulate to give 640 acres of land to each head of any Indian family residing on the lands now ceded, or which may hereafter be surrendered to the United States, who may wish to become citizens of the United States; so also the second article of the treaty with the same nation, of the 10th of March 1819, contains the same stipulation in favour of the heads of families, who may choose to become citizens of the United States; thereby clearly showing that they were not considered citizens at the time those stipulations were entered into, or the provision would have been entirely unnecessary if not absurd. In 1782, a committee of congress report, that all the lands belonging to the six nations of Indians have been in due form put under the crown as appendant to the government of New York, so far as respects jurisdiction only; that that colony has borne the burthen of protecting and supporting the six nations of Indians and their tributaries for one hundred years, as the dependents and allies of that government; that the crown of England has always considered and treated the country of the six nations as one appendant to the government of New York; that they have been so recognized and admitted by their public acts by Massachusetts, Connecticut, Pennsylvania, Maryland and Virginia; that by accepting this cession, the jurisdiction of the whole western territory, belonging to the six nations and their tributaries, will be vested in the United States, greatly to the adventage of the union [p. 606]. In considering the bearing of the constitution on their rights, it must be borne in mind, that a majority of the states represented in the convention had ceded to the United States the soil and jurisdiction of their western lands, or claimed it to be remaining in themselves; that congress asserted as to the ceded, and the states as to the unceded territory, their right to the soil absolutely and the dominion in full sovereignty, within their respective limits, subject only to Indian occupancy, not as foreign states or nations, but as dependent on and appendant to the state governments: that before the convention acted, congress had erected a government in the north western territory containing numerous and powerful nations or tribes of Indians, whose jurisdiction was continued and whose sovereignty was overturned, if it ever existed, except by permission of the states or congress, by ordaining that the territorial laws should extend over the whole district; and directing divisions for the execution of civil and criminal process in every part; that the Cherokees were then dependants, having given up all their affairs to the regulation and management of congress, and that all the regulations of congress, over Indian affairs were then in force over an immense territory, under a solemn pledge to the inhabitants, that whenever their population and circumstances would admit they should form constitutions and become free, sovereign and independent states on equal footing with the old component members of the confederation; that by the existing regulations and treaties, the Indian tenure to their lands was their allotment as hunting grounds without the power of alienation, that the right of occupancy was not individual, that the Indians were forbidden all trade or intercourse with any person not licensed or at a post not designated by regulation, that Indian affairs formed no part of the foreign concerns of the government, and that though they were permitted to regulate their internal affairs in their own way, it was not by any inherent right acknowledged by congress or reserved by treaty, but because congress did not think proper to exercise the sole and exclusive right, declared and asserted in all their regulations from 1775 to 1788, in the articles of confederation, in the ordinance of 1787 and the proclamation of 1788; which the plaintiffs solemnly recognized and expressly granted by the treaty of Hopewell in 1785, as conferred on congress to be exercised as they should think proper. The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. They secure to the Indians the enjoyment of the rights they stipulate to give or secure, to their full extent, and in the plenitude of good faith; but the treaties must be considered as the rules of reciprocal obligations. So it was understood by congress as declared by them in their proclamation of 1st September 1788 (1 Laws U. S. 619), and so understood at the adoption of the constitution. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. The journals of congress, from the year 1775 down to the adoption of the present constitution, abundantly establish this fact. And where is the authority, either in the constitution or in the practice of the government, for making any distinction between treaties made with the Indian nations and any other foreign power? In the very treaty of Hopewell, the language or evidence of which is appealed to as the leading proof of the existence of this supposed state, we find the commissioners of the United States expressing themselves in these terms. These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states. Where is the rule to stop? The act of the 2d of December, 1830 is entitled 'an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing on the mines.' Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contra-distinguishing them from each other. - This case is important to us in History because it informs us on the Article III that involved the case. 1 Laws United States, 302. In my opinion there is no plaintiff in this suit; and this opinion precludes any examination into the merits of the bill, or the weight of any minor objections. The raising the word 'trade' to the dignity of commerce, regulatingit with Indians or Indian tribes, is only a change of words. 8 Wheat. It closes with a direction, that in all cases where transactions with any nation or tribe of Indians shall become necessary for the purposes of the ordinance, which cannot be done without interfering with the legislative rights of a state, the superintendent within whose district the same shall happen, shall act in conjunction with the authority of such state. In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old congress, from the commencement of the revolution up to the adoption of the constitution; so as to ascertain whether the Indians were considered and treated with as tribes of savages, or independent nations, foreign states on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations, and in connection with this view, refer to the acts of the federal government on the same subject. That various treaties have been, from time to time, made between the British colony in Georgia; between the state of Georgia, before her confederation with the other states; between the confederate states afterwards; and, finally, between the United States under their present constitution, and the Cherokee nation, as well as other nations of Indians: in all of which the Cherokee nation, and the other nations have been recognized as sovereign and independent states; possessing both the exclusive right to their territory, and the exclusive right of self government within that territory. If these Indians are to be called a state: then. Under these circumstances it is said that it cannot but be seen that unless this court shall interfere, the complainants have but these alternatives: either to surrender their lands in exchange for others in the western wilds of this continent, which would be to seal, at once, the doom of their civilization, Christianity, and national existence; or to surrender their national sovereignty, their property, rights and liberties, guarantied as these now are by so many treaties, to the rapacity and injustice of the state of Georgia; or to arm themselves in defence of these sacred rights, and fall sword in hand, on the graves of their fathers. In the case of Penn vs. Lord Baltimore, 1 Ves. In Cherokee Nation v. Georgia (1831), however, Chief Justice John Marshall declared that because Indian nations were dependent entities, they had no standing before the judiciary. It extended to the formation of a government whose laws and process were in force within its whole extent, without a saving of Indian jurisdiction. If this be a just view of the Oneida Indians, the rules and principles here applied to that nation may with much greater force be applied to the character, state, and condition of the Cherokee nation of Indians; and we may safely conclude that they are not citizens, and must of course be aliens: and, if aliens in their individual capacities, it will be difficult to escape the conclusion, that, as a community, they constitute a foreign nation or state, and thereby become a competent party to maintain an action in this court, according to the express terms of the constitution. Vattel 2, § 4. P. 614. When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution? The doctrine of this court in the case of Osborne vs. 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.. 1 Laws U. S. 326. But each of these terms, nation, state, power, as used in different parts of the constitution, imports the same thing, and does not admit of a different interpretation. and 1 and 2 Vesey, Jun. The power conferred to regulate commerce with the Indian tribes, is the same given to the old congress by the ninth article of the old confederation, 'to regulate trade with the Indians.' They never have been recognized as holding sovereignty over the territory they occupy. That the various proceedings from time to time had by the congress of the United States under the articles of their confederation, as well as under the present constitution of the United States, in relation to the subject of the Indian nations; confirm the same view of the subject. THE CHEROKEE NATION v. THE STATE OF GEORGIA. Such a construction makes the act inconsistent with itself, and directly repugnant to the various treaties entered into between the United States and the Cherokee Indians.
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