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 Cherokee Nation v. Georgia

Cherokee Nation v. Georgia

30 U.S. 1 (1831)

 
Motion for an injunction to prevent the execution of certain acts of the Legislature of the State of
Georgia in the territory of the Cherokee Nation, on behalf of the Cherokee Nation, they claiming
to proceed in the Supreme Court of the United States as a foreign state against the State of
Georgia under the provision of the Constitution of the United States which gives to the Court
jurisdiction in controversies in which a State of the United States or the citizens thereof, and a
foreign state, citizens, or subjects thereof are parties.
 
The Cherokee Nation is not a foreign state in the sense in which the terms "foreign state" is used
in the Constitution of the United States.
 
The third article of the Constitution of the United States describes the extent of the judicial
power. The second section closes an enumeration of the cases to which it extends with
"controversies between a State or the citizens thereof and foreign states, citizens or subjects." A
subsequent clause of the same section gives the Supreme Court original jurisdiction in all cases in
which a State shall be a party -- the State of Georgia may then certainly be sued in this Court.
 
The Cherokees are a State. They have been uniformly treated as a State since the settlement of
our country. The numerous treaties made with them by the United States recognise them as a
people capable of maintaining the relations of peace and war; of being responsible in their
political character for any violation of their engagements, or for any aggression committed on the
citizens of the United States by any individual of their community. Laws have [p*2] been enacted
in the spirit of these treaties. The acts of our Government plainly recognise the Cherokee Nation
as a State, and the Courts are bound by those acts.
 
The condition of the Indians in relation to the United States is perhaps unlike that of any other
two people in existence. In general, nations not owing a common allegiance are foreign to each
other. The term "foreign nation" is with strict propriety applicable by either to the other. But the
relation of the Indians to the United States is marked by peculiar and cardinal distinctions which
exist nowhere else.
 
The Indians are acknowledged to have an unquestionable, and heretofore an unquestioned, right
to the lands they occupy until that right shall be extinguished by a voluntary cession to our
Government. It may well be doubted whether those tribes which reside within the acknowledged
boundaries of the United States can, with strict accuracy, be denominated foreign nations. They
may more correctly, perhaps, be denominated domestic dependent nations. They occupy a
territory to which we assert a title independent of their will, which must take effect in point of
possession when their right of possession ceases; meanwhile, they are in a state of pupilage.
Their relations to the United States resemble that of a ward to his guardian. They look to our
Government for protection, rely upon its kindness and its power, appeal to it for relief to their
wants, and address the President as their Great Father.
 
The bill filed on behalf of the Cherokees seeks to restrain a State from forcible exercise of
legislative power over a neighbouring people asserting their independence, their right to which
the State denies. On several of the matters alleged in the bill, for example, on the laws making it
criminal to exercise the usual power of self-government in their own country by the Cherokee
Nation, this Court cannot interpose, at least in the form in which those matters are presented.
That part of the bill which respects the land occupied by the Indians, and prays the aid of the
Court to protect their possessions, may be more doubtful. The mere question of right might
perhaps be decided by this Court in a proper case with proper parties. But the Court is asked to
do more than decide on the title. The bill requires us to control the Legislature of Georgia, and to
restrain the exertion of its physical force. The propriety of such an interposition by the Court may
well be questioned. It savours too much of the exercise of political power to be within the proper
province of the Judicial Department.
 
This case came before the court on a motion on behalf of the Cherokee Nation of Indians for a
subpoena, and for an injunction to restrain the State of Georgia, the Governor, Attorney General,
judges, justices of the peace, sheriffs, deputy sheriffs, constables, and others the officers,
agents, and servants of that State from executing and enforcing the laws of Georgia or any of
these laws, or serving process, or doing anything towards the execution or enforcement of those
laws, within the Cherokee territory, as designated by treaty between the United States and the
Cherokee Nation.
 
The motion was made, after notice and a copy of the bill [p*3] filed at the instance and under the
authority of the Cherokee Nation had been served on the Governor and Attorney General of the
State of Georgia on the 27th December, 1830, and the 1st of January, 1831. The notice Stated
that the motion would be made in this court on Saturday, the 5th day of March, 1831. The bill
was signed by John Ross, principal chief of the Cherokee Nation, and an affidavit, in the usual
form, of the facts stated in the bill was annexed; which was sworn to before a justice of the peace
of Richmond County, State of Georgia.
 
The bill set forth the complainants to be
 
the Cherokee Nation of Indians, a foreign state, not owing allegiance to the United States, nor to
any State of this union, nor to any prince, potentate or State, other than their own.
 
That, from time immemorial, the Cherokee Nation have composed a sovereign and independent
State, and in this character have been repeatedly recognized, and still stand recognized by the
United States, in the various treaties subsisting between their nation and the United States.
 
That the Cherokees were the occupants and owners of the territory in which they now reside
before the first approach of the white men of Europe to the western continent, "deriving their title
from the Great Spirit, who is the common father of the human family, and to whom the whole
earth belongs." Composing the Cherokee Nation, they and their ancestors have been and are the
sole and exclusive masters of this territory, governed by their own laws, usages, and customs.
 
The bill states the grant, by a charter in 1732, of the country on this continent lying between the
Savannah and Alatahama rivers, by George the Second, "monarch of several islands on the
eastern coast of the Atlantic," the same country being then in the ownership of several distinct,
sovereign, and independent nations of Indians, and amongst them the Cherokee Nation.
 
The foundation of this charter, the bill states, is asserted to be the right of discovery to the
territory granted; a ship manned by the subjects of the king having,
 
about two centuries and a half before, sailed along the coast of the western hemisphere, from the
fifty-sixth to the thirty-eighth degree of north [p*4] latitude, and looked upon the face of that
coast without even landing on any part of it.
 
This right, as affecting the right of the Indian nation, the bill denies, and asserts that the whole
length to which the right of discovery is claimed to extend among European nations is to give to
the first discoverer the prior and exclusive right to purchase these lands from the Indian
proprietors, against all other European sovereigns, to which principle the Indians have never
assented, and which they deny to be a principle of the natural law of nations or obligatory on
them.
 
The bill alleges that it never was claimed under the charter of George the Second that the grantees
had a right to disturb the self-government of the Indians who were in possession of the country,
and that, on the contrary, treaties were made by the first adventurers with the Indians by which a
part of the territory was acquired by them for a valuable consideration, and no pretension was
ever made to set up the British laws in the country owned by the Indians. That various treaties
have been, from time to time, made between the British colony in Georgia; between the State of
Georgia, before her confederation with the other States; between the confederate States
afterwards; and, finally, between the United States under their present Constitution and the
Cherokee Nation, as well as other nations of Indians, in all of which the Cherokee Nation and
the other nations have been recognized as sovereign and independent States possessing both the
exclusive right to their territory and the exclusive right of self-government within that territory.
That the various proceedings from time to time had by the Congress of the United States under
the articles of their confederation, as well as under the present Constitution of the United States,
in relation to the subject of the Indian nations confirm the same view of the subject.
 
The bill proceeds to refer to the treaty concluded at Hopewell on the 28th November, 1785,
"between the commissioners of the United States and headmen and warriors of all the
Cherokees;" the treaty of Holston of the 22d July, 1791, "between the president of the United
States by his duly authorized commissioner, William Blount, and the chiefs and warriors of the
Cherokee Nation of Indians," and the additional [p*5] article of 17th November, 1792, made at
Philadelphia by Henry Knox, the secretary at war, acting on behalf of the United States; the
treaty made at Philadelphia on the 26th June, 1794; the treaties between the same parties made at
Tellico 2d October, 1790; on the 24th October, 1804; on the 25th October, 1805, and the 27th
October, 1805; the treaty at Washington on the 7th January, 1806, with the proclamation of that
convention by the president, and the elucidation of that convention of 11th September, 1807; the
treaty between the United States and the Cherokee Nation made at the city of Washington on the
22d day of March, 1816; another convention made at the same place, on the same day, by the
same parties; a treaty made at the Cherokee agency on the 8th July, 1807; and a treaty made at the
city of Washington on the 27th February, 1819,
 
all of which treaties and conventions were duly ratified and confirmed by the Senate of the
United States, and became thenceforth, and still are, a part of the supreme law of the land.
 
By those treaties, the bill asserts, the Cherokee Nation of Indians are acknowledged and treated
with as sovereign and independent States, within the boundary arranged by those treaties, and
that the complainants are, within the boundary established by the treaty of 1719, sovereign and
independent, with the right of self-government, without any right of interference with the same
on the part of any State of the United States. The bill calls the attention of the court to the
particular provisions of those treaties, "for the purpose of verifying the truth of the general
principles deduced from them."
 
The bill alleges, from the earliest intercourse between the United States and the Cherokee Nation,
an ardent desire has been evinced by the United States to lead the Cherokees to a greater degree
of civilization. This is shown by the fourteenth article of the treaty of Holston, and by the course
pursued by the United States in 1808, when a treaty was made giving to a portion of the nation
which preferred the hunter state a territory on the west of the Mississippi in exchange for a part
of the lower country of the Cherokees; and assurances were given by the president that those
who chose to remain for the purpose of engaging in the pursuits of agricultural and civilized life
in the country they occupied might rely "on the [p*6] patronage, aid, and good neighbourhood of
the United States." The treaty of 8th July, 1817, was made to carry those promises into effect,
and, in reliance on them, a large cession of lands was thereby made; and in 1819, on the 27th
February, another treaty was made, the preamble of which recites that a greater part of the
Cherokee Nation had expressed an earnest desire to remain on this side of the Mississippi, and
were desirous to commence those measures which they deem necessary to the civilization and
preservation of their nation, to give effect to which object without delay, that treaty was declared
to be made, and another large cession of their lands was thereby made by them to the United
States.
 
By a reference to the several treaties, it will be seen that a fund is provided for the establishment
of schools, and the bill asserts that great progress has been made by the Cherokees in civilization
and in agriculture.
 
They have established a constitution and form of government, the leading features of which they
have borrowed from that of the United States, dividing their government into three separate
departments, legislative, executive and judicial. In conformity with this constitution, these
departments have all been organized. They have formed a code of laws, civil and criminal,
adapted to their situation, have erected courts to expound and apply those laws, and organized an
executive to carry them into effect. They have established schools for the education of their
children, and churches in which the Christian religion is taught; they have abandoned the hunter
state and become agriculturists, mechanics, and herdsmen; and, under provocations long
continued and hard to be borne, they have observed with fidelity all their engagements by treaty
with the United States.
 
Under the promised "patronage and good neighbourhood" of the United States, a portion of the
people of the nation have become civilized Christians and agriculturists, and the bill alleges that,
in these respects, they are willing to submit to a comparison with their white brethren around
them.
 
The bill claims for the Cherokee Nation the benefit of the provision in the Constitution that
treaties are the supreme law of the land, and all judges are bound thereby; of the declaration in the
Constitution that no State shall pass any law [p*7] impairing the obligation of contracts, and
avers that all the treaties referred to are contracts of the highest character and of the most solemn
obligation. It asserts that the Constitutional provision that Congress shall have power to regulate
commerce with the Indian tribes is a power which, from its nature, is exclusive, and
consequently forbids all interference by any one of the States. That Congress have, in execution
of this power, passed various acts, and, among others, the act of 1802, "to regulate trade and
intercourse with the Indian tribes, and to preserve peace on the frontiers." The objects of these
acts are to consecrate the Indian boundary as arranged by the treaties, and they contain clear
recognitions of the sovereignty of the Indians, and of their exclusive right to give and to execute
the law within that boundary.
 
The bill proceeds to state that, in violation of these treaties, of the Constitution of the United
States, and of the Act of Congress of 1802, the State of Georgia, at a session of her Legislature
held in December in the year 1828, passed an act, which received the assent of the Governor of
that State on the twentieth day of that month and year, entitled,
 
An act to add the territory lying within this State and occupied by the Cherokee Indians, to the
counties of Carroll, De Kalb, Gwinett, Hall, and Habersham, and to extend the laws of this State
over the same, and for other purposes.
 
That afterwards, to-wit in the year 1829, the Legislature of the said State of Georgia passed
another act, which received the assent of the Governor on the 19th December of that year,
entitled,
 
An act to add the territory lying within the chartered limits of Georgia, now in the occupancy of
the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinett, Hall, and Habersham, and to
extend the laws of this State over the same, and to annul all laws and ordinances made by the
Cherokee Nation of Indians, and to provide for the compensation of officers serving legal
processes in said territory, and to regulate the testimony of Indians, and to repeal the ninth
section of the Act of 1828 on this subject.
 
The effect of these laws, and their purposes, are stated to be to parcel out the territory of the
Cherokees; to extend all the laws of Georgia over the same; to abolish the Cherokee laws, and to
deprive the Cherokees of the protection of their laws; [p*8] to prevent them, as individuals, from
enrolling for emigration, under the penalty of indictment before the State courts of Georgia; to
make it murder in the officers of the Cherokee government to inflict the sentence of death in
conformity with the Cherokee laws, subjecting them all to indictment therefor, and death by
hanging; extending the jurisdiction of the justices of the peace of Georgia into the Cherokee
territory, and authorising the calling out of the militia of Georgia to enforce the process; and
finally, declaring that no Indian, or descendant of any Indian, residing within the Cherokee
Nation of Indians shall be deemed a competent witness in any court of the State of Georgia, in
which a white person may be a party, except such white person resides within the said nation.
 
All these laws are averred to be null and void because repugnant to treaties in full force, to the
Constitution of the United States, and to the Act of Congress of 1802.
 
The bill then proceeds to State the interference of President Washington for the protection of the
Cherokees, and the resolutions of the Senate in consequence of his reference of the subject of
intrusions on their territory. That, in 1802, the State of Georgia, in ceding to the United States a
large body of lands within her alleged chartered limits and imposing a condition that the Indian
title should be peaceably extinguished, admitted the subsisting Indian title. That cessions of
territory have always been voluntarily made by the Indians in their national character, and that
cessions have been made of as much land as could be spared, until the cession of 1819,
 
when they had reduced their territory into as small a compass as their own convenience would
bear, and they then accordingly resolved to cede no more.
 
The bill then refers to the various applications of Georgia to the United States to extinguish the
Indian title by force, and her denial of the obligations of the treaties with the Cherokees,
although, under these treaties, large additions to her disposable lands had been made, and states
that Presidents Monroe and Adams, in succession, understanding the articles of cession and
agreement between the State of Georgia and the United States in the year 1802 as binding the
United States to extinguish the Indian title so soon only as it could be done peaceably and on
reasonable terms, refused themselves to apply force to these complainants [p*9] or to permit it to
be applied by the State of Georgia to drive them from their possession, but, on the contrary,
avowed their determination to protect these complainants by force, if necessary, and to fulfil the
guarantee given to them by the treaties.
 
The State of Georgia, not having succeeded in these applications to the Government of the
United States, have resorted to legislation, intending to force, by those means, the Indians from
their territory. Unwilling to resist by force of arms these pretensions and efforts, the bill states
that application for protection, and for the execution of the guarantee of the treaties, has been
made by the Cherokees to the present President of the United States, and they have received for
answer "that the President of the United States has no power to protect them against the laws of
Georgia."
 
The bill proceeds to refer to the act of Congress of 1830 entitled "An act to provide for an
exchange of lands with the Indians residing in any of the States or territories, and for their
removal west of the Mississippi." The Act is to apply to such of the Indians as may choose to
remove, and by the proviso to it, nothing contained in the Act shall be construed as authorising
or directing the violation of any existing treaty between the United States and any of the Indian
tribes.
 
The complainants have not chosen to remove, and this, it is alleged, it is sufficient for the
complainants to say; but they proceed to state that they are fully satisfied with the country they
possess; the climate is salubrious; it is convenient for commerce and intercourse; it contains
schools in which they can obtain teachers from the neighbouring States, and places for the
worship of God, where Christianity is taught by missionaries and pastors easily supplied from
the United States. The country, too,
 
is consecrate in their affections from having been immemorially the property and residence of
their ancestors, and from containing now the graves of their fathers, relatives, and friends.
 
Little is known of the country west of the Mississippi, and, if accepted, the bill asserts it will be
the grave not only of their civilization and Christianity, but of the nation itself.
 
It also alleges that the portion of the nation who emigrated [p*10] under the patronage and
sanction of the President in 1808 and 1809, and settled on the territory assigned to them on the
Arkansas river, were afterwards required to remove again, and that they did so under the
stipulations of a treaty made in May 1828. The place to which they removed under this last treaty
is said to be exposed to incursions of hostile Indians, and that they are
 
engaged in constant scenes of killing and scalping, and have to wage a war of extermination with
more powerful tribes, before whom they will ultimately fall.
 
They have therefore, decidedly rejected the offer of exchange. The bill then proceeds to state
various acts under the authority of the laws of Georgia in defiance of the treaties referred to, and
of the Constitution of the United States, as expressed in the act of 1802, and that the State of
Georgia has declared its determination to continue to enforce these laws so long as the
complainants shall continue to occupy their territory.
 
But while these laws are enforced in a manner the most harassing and vexatious to your
complainants, the design seems to have been deliberately formed to carry no one of these cases to
final decision in the State courts, with the view, as the complainants believe and therefore allege,
to prevent any one of the Cherokee defendants from carrying those cases to the Supreme Court
of the United States by writ of error for review under the twenty-fifth section of the act of
Congress of the United States, passed in the year 1789, and entitled "An act to establish the
judicial courts of the United States."
 
Numerous instances of proceedings are set forth at large in the bill. The complainants expected
protection from these unconstitutional acts of Georgia by the troops of the United States, but
notice has been given by the commanding officer of those troops to John Ross, the principal
chief of the Cherokee Nation, that "these troops, so far from protecting the Cherokees, would
cooperate with the civil officers of Georgia in enforcing their laws upon them." Under these
circumstances, it is said that it cannot but be seen that, unless this court shall interfere, the
complainants have but these alternatives: either to surrender their lands in exchange for others in
the western wilds of this continent, which would be to seal at once the doom of their civilization,
Christianity, and national [p*11] existence; or to surrender their national sovereignty, their
property, rights and liberties, guarantied as these now are by so many treaties, to the rapacity and
injustice of the State of Georgia; or to arm themselves in defence of these sacred rights, and fall,
sword in hand, on the graves of their fathers.
 
These proceedings, it is alleged, are wholly inconsistent with equity and good conscience; tend to
the manifest wrong of the complainants; and violate the faith of the treaties to which Georgia and
the United States are parties, and of the Constitution of the United States. These wrongs are of a
character wholly irremediable by the common law, and these complainants are wholly without
remedy of any kind except by the interposition of this honourable Court.
 
The bill avers that this Court has, by the Constitution and laws of the United States, original
jurisdiction of controversies between a State and a foreign state, without any restriction as to the
nature of the controversy; that, by the Constitution, treaties are the supreme law of the land.
That, as a foreign state, the complainants claim the exercise of the powers of the Court of protect
them in their rights, and that the laws of Georgia, which interfere with their rights and property,
shall be declared void, and their execution be perpetually enjoined.
 
The bill States that John Ross is "the principal chief and executive head of the Cherokee Nation,"
and that, in a full and regular council of that nation, he has been duly authorised to institute this
and all other suits which may become necessary for the assertion of the rights of the entire
nation.
 
The bill then proceeds in the usual form to ask and answer to the allegations contained in it, and
 
that the said State of Georgia, her Governor, Attorney General, judges, magistrates, sheriffs,
deputy sheriffs, constables, and all other her officers, agents, and servants, civil and military,
may be enjoined and prohibited from executing the laws of that State within the boundary of the
Cherokee territory, as prescribed by the treaties now subsisting between the United States and
the Cherokee Nation, or interfering in any manner with the rights of self-government possessed
by the Cherokee Nation within the limits of their territory, as defined by the treaty; that the two
laws of Georgia before mentioned as having been passed in the years [p*12] 1828 and 1829
may, by the decree of this honourable Court, be declared unconstitutional and void; and that the
State of Georgia, and all her officers, agents, and servants may be forever enjoined from
interfering with the lands, mines and other property, real and personal, of the Cherokee Nation,
or with the persons of the Cherokee people, for or on account of anything done by them within
the limits of the Cherokee territory; that the pretended right of the State of Georgia to the
possession, government, or control of the lands, mines, and other property of the Cherokee
Nation within their territory may, by this honourable Court, be declared to be unfounded and
void, and that the Cherokees may be left in the undisturbed possession, use, and enjoyment of
the same, according to their own sovereign right and pleasure, and their own laws, usages, and
customs, free from any hindrance, molestation, or interruption by the State of Georgia, her
officers, agents, and servants; that these complainants may be quieted in the possession of all
their rights, privileges, and immunities, under their various treaties with the United States; and
that they may have such other and farther relief as this honourable Court may deem consistent
with equity and good conscience, and as the nature of their case may require.
 
On the day appointed for the hearing, the counsel for the complainants filed a supplemental bill,
sworn to by Richard Taylor, John Ridge, and W. S. Coodey of the Cherokee Nation of Indians,
before a justice of the peace of the county of Washington in the district of Columbia.
 
The supplemental bill states that, since their bill, now submitted, was drawn, the following acts,
demonstrative of the determination of the State of Georgia to enforce her assumed authority over
the complainants and their territory, property, and jurisdiction have taken place.
 
The individual, called in that bill Corn Tassel and mentioned as having been arrested in the
Cherokee territory under process issued under the laws of Georgia, has been actually hung in
defiance of a writ of error allowed by the Chief Justice of this Court to the final sentence of the
Court of Georgia in his case. That writ of error, having been received by the Governor of the
State, was, as the complainants are informed and believe, immediately communicated by him to
the Legislature of the [p*13] State, then in session, who promptly resolved, in substance, that
the Supreme Court of the United States had no jurisdiction over the subject, and advised the
immediate execution of the prisoner under the sentence of the State Court, which accordingly
took place.
 
The complainants beg leave farther to state that the Legislature of the State of Georgia, at the
same session, passed the following laws, which have received the sanction of the Governor of
the State.
 
An act to authorize the survey and disposition of lands within the limits of Georgia, in the
occupancy of the Cherokee tribe of Indians, and all other unlocated lands within the limits of the
said State, claimed as Creek land; and to authorize the Governor to call out the military force to
protect surveyors in the discharge of their duties; and to provide for the punishment of persons
who may prevent or attempt to prevent any surveyor from performing his duties, as pointed out
by this act, or who shall wilfully cut down or deface any marked trees, or remove any landmarks
which may be made in pursuance of this act; and to protect the Indians in the peaceable
possession of their improvements, and of the lots on which the same may be situate.
 
Under this law, it is stated that the lands within the boundary of the Cherokee territory are to be
surveyed, and to be distributed by lottery among the people of Georgia.
 
At the same session, the Legislature of Georgia passed another act, entitled "An act to declare
void all contracts hereafter made with the Cherokee Indians, so far as the Indians are concerned,"
which act received the assent of the Governor of the State on the 23d of December, 1830.
 
The Legislature of Georgia, at its same session, passed another law, entitled "An act to provide
for the temporary disposal of the improvements and possessions purchased from certain
Cherokee Indians and residents," which act received the assent of the Governor of the State the
22d December 1830.
 
At its same session, the Legislature of Georgia passed another law, entitled
 
An act to prevent the exercise of assumed and arbitrary power by all persons under pretext of
authority from the Cherokee Indians and their laws, and to prevent white persons from residing
within that part of the chartered [p*14] limits of Georgia occupied by the Cherokee Indians, and
to provide a guard for the protection of the gold mines, and to enforce the laws of the State
within the aforesaid territory.
 
At the same session of its Legislature, the State of Georgia passed another act, entitled
 
An act to authorize the Governor to take possession of the gold, silver, and other mines lying and
being in that section of the chartered limits of Georgia commonly called the Cherokee country,
and those upon all other unappropriated lands of the State, and for punishing any person or
persons who may hereafter be found trespassing upon the mines.
 
The supplemental bill further states the proceedings of the Governor of Georgia, under these
laws, and that he has stationed an armed force of the citizens of Georgia at the gold mines within
the territory of the complainants, who are engaged in enforcing the laws of Georgia. Additional
acts of violence and injustice are said to have been done under the authority of the laws of
Georgia, and by her officers and agents, within the Cherokee territory.
 
The complainants allege that the several legislative acts, herein set forth and referred to, are in
direct violation of the treaties enumerated in their bill, to which this is a supplement, as well as in
direct violation of the Constitution of the United States, and the act of Congress passed under its
authority in the year 1802, entitled, "An act to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers."
 
They pray that this supplement may be taken and received as a part of their bill; that the several
laws of Georgia herein set forth may be declared by the decree of this Court to be null and void,
on the ground of the repugnancy to the Constitution, laws, and treaties set forth above, and in the
bill to which this is a supplement; and that these complainants may have the same relief by
injunction and a decree of peace, or otherwise, according to equity and good conscience, against
these laws as against those which are the subject of their bill as first drawn. [p*15]
 
 

Opinions

 
MARSHALL, Opinion of the Court
 
Mr Chief Justice MARSHALL delivered the opinion of the Court.
 
This bill is brought by the Cherokee Nation, praying an injunction to restrain the State of Georgia
from the execution of certain laws of that State which, as is alleged, go directly to annihilate the
Cherokees as a political society and to seize, for the use of Georgia, the lands of the Nation
which have been assured to them by the United States in solemn treaties repeatedly made and still
in force.
 
If Courts were permitted to indulge their sympathies, a case better calculated to excite them can
scarcely be imagined. A people once numerous, powerful, and truly independent, found by our
ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking
beneath our superior policy, our arts and our arms, have yielded their lands by successive
treaties, each of which contains a solemn guarantee of the residue, until they retain no more of
their formerly extensive territory than is deemed necessary to their comfortable subsistence. To
preserve this remnant, the present application is made.
 
Before we can look into the merits of the case, a preliminary inquiry presents itself. Has this
Court jurisdiction of the cause?
 
The third article of the Constitution describes the extent of the judicial power. The second section
closes an enumeration of the cases to which it is extended, with "controversies" "between a State
or the citizens thereof, and foreign states, citizens, or subjects." A subsequent clause of the same
section gives the supreme Court original jurisdiction in all [p*16] cases in which a State shall be
a party. The party defendant may then unquestionably be sued in this Court. May the plaintiff sue
in it? Is the Cherokee Nation a foreign state in the sense in which that term is used in the
Constitution?
 
The counsel for the plaintiffs have maintained the affirmative of this proposition with great
earnestness and ability. So much of the argument as was intended to prove the character of the
Cherokees as a State as a distinct political society, separated from others, capable of managing its
own affairs and governing itself, has, in the opinion of a majority of the judges, been completely
successful. They have been uniformly treated as a State from the settlement of our country. The
numerous treaties made with them by the United States recognize them as a people capable of
maintaining the relations of peace and war, of being responsible in their political character for any
violation of their engagements, or for any aggression committed on the citizens of the United
States by any individual of their community. Laws have been enacted in the spirit of these
treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the
Courts are bound by those acts.
 
A question of much more difficulty remains. Do the Cherokees constitute a foreign state in the
sense of the Constitution?
 
The counsel have shown conclusively that they are not a State of the union, and have insisted
that, individually, they are aliens, not owing allegiance to the United States. An aggregate of
aliens composing a State must, they say, be a foreign state. Each individual being foreign, the
whole must be foreign.
 
This argument is imposing, but we must examine it more closely before we yield to it. The
condition of the Indians in relation to the United States is perhaps unlike that of any other two
people in existence. In the general, nations not owing a common allegiance are foreign to each
other. The term foreign nation is, with strict propriety, applicable by either to the other. But the
relation of the Indians to the United States is marked by peculiar and cardinal distinctions which
exist nowhere else. [p*17]
 
The Indian Territory is admitted to compose a part of the United States. In all our maps,
geographical treatises, histories, and laws, it is so considered. In all our intercourse with foreign
nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign
nations, they are considered as within the jurisdictional limits of the United States, subject to
many of those restraints which are imposed upon our own citizens. They acknowledge
themselves in their treaties to be under the protection of the United States; they admit that the
United States shall have the sole and exclusive right of regulating the trade with them, and
managing all their affairs as they think proper; and the Cherokees, in particular, were allowed by
the treaty of Hopewell, which preceded the Constitution, "to send a deputy of their choice,
whenever they think fit, to Congress." Treaties were made with some tribes by the State of New
York, under a then unsettled construction of the confederation by which they ceded all their lands
to that State, taking back a limited grant to themselves in which they admit their dependence.
 
Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned
right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our
government, yet it may well be doubted whether those tribes which reside within the
acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign
nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They
occupy a territory to which we assert a title independent of their will, which must take effect in
point of possession when their right of possession ceases. Meanwhile they are in a state of
pupilage. Their relation to the United States resembles that of a ward to his guardian.
 
They look to our government for protection; rely upon its kindness and its power; appeal to it for
relief to their wants; and address the President as their Great Father. They and their country are
considered by foreign nations, as well as by ourselves, as being so completely under the
sovereignty and dominion of the United States that any attempt to acquire their lands, or to form
a political connexion with them, would [p*18] be considered by all as an invasion of our territory
and an act of hostility.
 
These considerations go far to support the opinion that the framers of our Constitution had not
the Indian tribes in view when they opened the courts of the union to controversies between a
State or the citizens thereof, and foreign states.
 
In considering this subject, the habits and usages of the Indians in their intercourse with their
white neighbours ought not to be entirely disregarded. At the time the Constitution was framed,
the idea of appealing to an American court of justice for an assertion of right or a redress of
wrong had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the
tomahawk, or to the Government. This was well understood by the Statesmen who framed the
Constitution of the United States, and might furnish some reason for omitting to enumerate them
among the parties who might sue in the courts of the union. Be this as it may, the peculiar
relations between the United States and the Indians occupying our territory are such that we
should feel much difficulty in considering them as designated by the term foreign state were there
no other part of the Constitution which might shed light on the meaning of these words. But we
think that, in construing them, considerable aid is furnished by that clause in the eighth section of
the third article which empowers Congress to "regulate commerce with foreign nations, and
among the several States, and with the Indian tribes."
 
In this clause, they are as clearly contradistinguished by a name appropriate to themselves from
foreign nations as from the several States composing the union. They are designated by a distinct
appellation, and as this appellation can be applied to neither of the others, neither can the
appellation distinguishing either of the others be in fair construction applied to them. The objects
to which the power of regulating commerce might be directed are divided into three distinct
classes -- foreign nations, the several States, and Indian tribes. When forming this article, the
convention considered them as entirely distinct. We cannot assume that the distinction was lost in
framing a subsequent article unless there be something in its language to authorize the
assumption.
 
The counsel for the plaintiffs contend that the words [p*19] "Indian tribes" were introduced into
the article empowering Congress to regulate commerce for the purpose of removing those doubts
in which the management of Indian affairs was involved by the language of the ninth article of
the confederation. Intending to give the whole power of managing those affairs to the
government about to be instituted, the convention conferred it explicitly, and omitted those
qualifications which embarrassed the exercise of it as granted in the confederation. This may be
admitted without weakening the construction which has been intimated. Had the Indian tribes
been foreign nations in the view of the convention, this exclusive power of regulating intercourse
with them might have been, and most probably would have been, specifically given in language
indicating that idea, not in language contradistinguishing them from foreign nations. Congress
might have been empowered "to regulate commerce with foreign nations, including the Indian
tribes, and among the several States." This language would have suggested itself to statesmen
who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them
particularly.
 
It has been also said that the same words have not necessarily the same meaning attached to them
when found in different parts of the same instrument -- their meaning is controlled by the
context. This is undoubtedly true. In common language, the same word has various meanings,
and the peculiar sense in which it is used in any sentence is to be determined by the context. This
may not be equally true with respect to proper names. "Foreign nations" is a general term, the
application of which to Indian tribes, when used in the American Constitution, is at best
extremely questionable. In one article in which a power is given to be exercised in regard to
foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in
terms clearly contradistinguishing them from each other. We perceive plainly that the
Constitution in this article does not comprehend Indian tribes in the general term "foreign
nations," not, we presume, because a tribe may not be a nation, but because it is not foreign to
the United States. When, afterwards, the term "foreign state" is introduced, we cannot impute to
the convention the intention to desert its former meaning and to comprehend Indian tribes within
it unless the context force that [p*20] construction on us. We find nothing in the context, and
nothing in the subject of the article, which leads to it.
 
The Court has bestowed its best attention on this question, and, after mature deliberation, the
majority is of opinion that an Indian tribe or Nation within the United States is not a foreign state
in the sense of the Constitution, and cannot maintain an action in the Courts of the United States.
 
A serious additional objection exists to the jurisdiction of the Court. Is the matter of the bill the
proper subject for judicial inquiry and decision? It seeks to restrain a State from the forcible
exercise of legislative power over a neighbouring people, asserting their independence, their right
to which the State denies. On several of the matters alleged in the bill, for example, on the laws
making it criminal to exercise the usual powers of self-government in their own country by the
Cherokee Nation, this Court cannot interpose, at least in the form in which those matters are
presented.
 
That part of the bill which respects the land occupied by the Indians, and prays the aid of the
Court to protect their possession may be more doubtful. The mere question of right might
perhaps be decided by this Court in a proper case with proper parties. But the Court is asked to
do more than decide on the title. The bill requires us to control the Legislature of Georgia, and to
restrain the exertion of its physical force. The propriety of such an interposition by the Court may
be well questioned. It savours too much of the exercise of political power to be within the proper
province of the judicial department. But the opinion on the point respecting parties makes it
unnecessary to decide this question.
 
If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are
to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the past or prevent the future.
 
The motion for an injunction is denied.
 
JOHNSON, Separate Opinion
 
Mr. Justice JOHNSON.
 
In pursuance of my practice in giving an opinion on all Constitutional questions, I must present
my views on this. With the morality of the case I have no concern; I am called upon to consider it
as a legal question. [p*21]
 
The object of this bill is to claim the interposition of this Court as the means of preventing the
State of Georgia, or the public functionaries of the State of Georgia, from asserting certain rights
and powers over the country and people of the Cherokee Nation.
 
It is not enough, in order to come before this Court for relief, that a case of injury, or of cause to
apprehend injury, should be made out. Besides having a cause of action, the complainant must
bring himself within that description of parties, who alone are permitted, under the Constitution,
to bring an original suit to this Court.
 
It is essential to such suit that a State of this union should be a party; so says the second member
of the second section of the third article of the Constitution; the other party must, under the
control of the Eleventh Amendment, be another State of the union, or a foreign state. In this case,
the averment is that the complainant is a foreign state.
 
Two preliminary questions then present themselves.
 
1. Is the complainant a foreign state in the sense of the Constitution?
 
2. Is the case presented in the bill one of judicial cognizance?
 
Until these questions are disposed of, we have no right to look into the nature of the controversy
any farther than is necessary to determine them. The first of the questions necessarily resolves
itself into two: 1. Are the Cherokees a State? 2. Are they a foreign state?
 
1. I cannot but think that there are strong reasons for doubting the applicability of the epithet
"state" to a people so low in the grade of organized society as our Indian tribes most generally
are. I would not here be understood as speaking of the Cherokees under their present form of
government, which certainly must be classed among the most approved forms of civil
government. Whether it can be yet said to have received the consistency which entitles that
people to admission into the family of nations is, I conceive, yet to be determined by the
executive of these States. Until then, I must think that we cannot recognize it as an existing State,
[p*22] under any other character than that which it has maintained hitherto as one of the Indian
tribes or nations.
 
There are great difficulties hanging over the question, whether they can be considered as States
under the Judiciary Article of the Constitution. 1. They never have been recognized as holding
sovereignty over the territory they occupy. It is in vain now to inquire into the sufficiency of the
principle that discovery gave the right of dominion over the country discovered. When the
populous and civilized nations beyond the Cape of Good Hope were visited, the right of
discovery was made the ground of an exclusive right to their trade, and confined to that limit.
When the eastern coast of this continent, and especially the part we inhabit, was discovered,
finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic
government, the right was extended to the absolute appropriation of the territory, the annexation
of it to the domain of the discoverer. It cannot be questioned that the right of sovereignty, as well
as soil, was notoriously asserted and exercised by the European discoverers. From that source
we derive our rights, and there is not an instance of a cession of land from an Indian nation in
which the right of sovereignty is mentioned as a part of the matter ceded.
 
It may be suggested that they were uniformly cessions of land without inhabitants, and therefore
words competent to make a cession of sovereignty were unnecessary. This, however, is not a
full answer, since soil, as well as people, is the object of sovereign action, and may be ceded
with or without the sovereignty, or may be ceded with the express stipulation that the inhabitants
shall remove. In all the cessions to us from the civilized states of the old world, and of our
transfers among ourselves, although of the same property, under the same circumstances, and
even when occupied by these very Indians, the express cession of sovereignty is to be found.
 
In the very treaty of Hopewell, the language or evidence of which is appealed to as the leading
proof of the existence of this supposed State, we find the commissioners of the United States
expressing themselves in these terms.
 
The commissioners plenipotentiary of the United States give peace to all the Cherokees, and
receive them into the favour and protection of the [p*23] United States on the following
conditions.
 
This is certainly the language of sovereigns and conquerors, and not the address of equals to
equals. And again, when designating the country they are to be confined to, comprising the very
territory which is the subject of this bill, they say, "Art. 4. The boundary allotted to the
Cherokees for their hunting grounds" shall be as therein described. Certainly this is the language
of concession on our part, not theirs, and when the full bearing and effect of those words, "for
their hunting grounds" is considered, it is difficult to think that they were then regarded as a
State, or even intended to be so regarded. It is clear that it was intended to give them no other
rights over the territory than what were needed by a race of hunters, and it is not easy to see how
their advancement beyond that State of society could ever have been promoted, or, perhaps,
permitted, consistently with the unquestioned rights of the States, or United States, over the
territory within their limits. The preemptive right, and exclusive right of conquest in case of war,
was never questioned to exist in the States which circumscribed the whole or any part of the
Indian grounds or territory. To have taken it from them by direct means would have been a
palpable violation of their rights. But every advance from the hunter state to a more fixed state of
society must have a tendency to impair that preemptive right, and ultimately to destroy it
altogether, both by increasing the Indian population and by attaching them firmly to the soil. The
hunter state bore within itself the promise of vacating the territory because, when game ceased,
the hunter would go elsewhere to seek it. But a more fixed state of society would amount to a
permanent destruction of the hope, and, of consequence, of the beneficial character, of the
preemptive right.
 
But it is said, that we have extended to them the means and inducement to become agricultural
and civilized. It is true: and the immediate object of that policy was so obvious as probably to
have intercepted the view of ulterior consequences. Independently of the general influence of
humanity, these people were restless, warlike, and signally cruel in their irruptions during the
revolution. The policy, therefore, of enticing them to the arts of peace, and to those
improvements which war might lay desolate, was obvious, and it was wise [p*24] to prepare
them for what was probably then contemplated, to-wit, to incorporate them in time into our
respective governments -- a policy which their inveterate habits and deep-seated enmity has
altogether baffled. But the project of ultimately organizing them into States, within the limits of
those States which had not ceded or should not cede to the United States the jurisdiction over the
Indian territory within their bounds, could not possibly have entered into the contemplation of
our government. Nothing but express authority from the States could have justified such a
policy, pursued with such a view. To pursue this subject a little more categorically.
 
If these Indians are to be called a State, then,
 
1. By whom are they acknowledged as such?
 
2. When did they become so?
 
3. And what are the attributes by which they are identified with other States.
 
As to the first question, it is clear that, as a State ,they are known to nobody on earth but
ourselves, if to us; how then can they be said to be recognized as a member of the community of
nations? Would any nation on earth treat with them as such? Suppose, when they occupied the
banks of the Mississippi or the sea coast of Florida, part of which in fact the Seminoles now
occupy, they had declared war and issued letters of marque and reprisal against us or Great
Britain -- would their commissions be respected? If known as a State, it is by us and us alone,
and what are the proofs? The treaty of Hopewell does not even give them a name other than that
of the Indians; not even nation or state, but regards them as what they were, a band of hunters,
occupying as hunting grounds, just what territory we chose to allot them. And almost every
attribute of sovereignty is renounced by them in that very treaty. They acknowledge themselves
to be under the sole and exclusive protection of the United States. They receive the territory
allotted to them as a boon from a master or conqueror; the right of punishing intruders into that
territory is conceded, not asserted as a right; and the sole and exclusive right of regulating their
trade and managing all their affairs in such manner as the government of the United States shall
think proper, amounting in terms to a relinquishment of all [p*25] power, legislative, executive
and judicial to the United States, is yielded in the ninth article.
 
It is true that the twelfth article gives power to the Indians to send a deputy to Congress, but such
deputy, though dignified by the name, was nothing and could be nothing but an agent such as
any other company might be represented by. It cannot be supposed that he was to be recognized
as a minister, or to sit in the Congress as a delegate. There is nothing express and nothing
implied that would clothe him with the attributes of either of these characters. As to a seat among
the delegates, it could not be granted to him.
 
There is one consequence that would necessarily flow from the recognition of this people as a
state which, of itself, must operate greatly against its admission.
 
Where is the rule to stop? Must every petty kraal of Indians, designating themselves a tribe or
nation, and having a few hundred acres of land to hunt on exclusively, be recognized as a State?
We should indeed force into the family of nations, a very numerous and very heterogeneous
progeny. The Catawbas, having indeed a few more acres than the republic of San Marino, but
consisting only of eighty or an hundred polls, would then be admitted to the same dignity. They
still claim independence, and actually execute their own penal laws, such as they are, even to the
punishment of death, and have recently done so. We have many ancient treaties with them, and
no nation has been more distinctly recognized, as far as such recognition can operate to
communicate the character of a State.
 
But secondly, at what time did this people acquire the character of a State?
 
Certainly not by the treaty of Hopewell, for every provision of that treaty operates to strip it of its
sovereign attributes, and nothing subsequent adds anything to that treaty, except using the word
Nation instead of Indians. And as to that article in the treaty of Holston, and repeated in the treaty
of Tellico, which guaranties to them their territory, since both those treaties refer to and confirm
the treaty of Hopewell, on what principle can it be contended that the guarantee can go farther
than to secure to them that right over the territory, which is conceded by the Hopewell treaty,
which interest is only that of hunting grounds. The general policy of the [p*26] United States,
which always looked to these Indian lands as a certain future acquisition, not less than the
express words of the treaty of Hopewell, must so decide the question.
 
If they were not regarded as one of the family of nations at the time of that treaty, even though at
that time first subdued and stripped of the attributes of a State, it is clear that, to be regarded now
as a State, they must have resumed their rank among nations at some subsequent period. But at
what subsequent period? Certainly by no decisive act until they organized themselves recently
into a government, and I have before remarked that, until expressly recognized by the executive
under that form of government, we cannot recognize any change in their form of existence.
Others have a right to be consulted on the admission of new States into the national family. When
this country was first appropriated or conquered by the crown of Great Britain, they certainly
were not known as members of the community of nations, and if they had been, Great Britain
from that time blotted them from among the race of sovereigns. From that time, Great Britain
considered them as her subjects whenever she chose to claim their allegiance, and their country
as hers, both in soil and sovereignty. All the forbearance exercised towards them was considered
as voluntary, and as their trade was more valuable to her than their territory, for that reason, and
not from any supposed want of right to extend her laws over them, did she abstain from doing
so.
 
And, thirdly, by what attributes is the Cherokee Nation identified with other States?
 
The right of sovereignty was expressly assumed by Great Britain over their country at the first
taking possession of it, and has never since been recognized as in them otherwise than as
dependent upon the will of a superior.
 
The right of legislation is in terms conceded to Congress by the treaty of Hopewell, whenever
they choose to exercise it. And the right of soil is held by the feeble tenure of hunting grounds,
and acknowledged on all hands subject to a restriction to sell to no one but the United States, and
for no use but that of Georgia.
 
They have in Europe sovereign and demi-sovereign States, and States of doubtful sovereignty.
But this State, if it be [p*27] a State, is still a grade below them all, for not to be able to alienate
without permission of the remainderman or lord places them in a state of feudal dependence.
 
However, I will enlarge no more upon this point, because I believe, in one view and in one only,
if at all, they are or may be deemed a State, though not a sovereign State, at least while they
occupy a country within our limits. Their condition is something like that of the Israelites, when
inhabiting the deserts. Though without land that they can call theirs in the sense of property, their
right of personal self-government has never been taken from them, and such a form of
government may exist though the land occupied be in fact that of another. The right to expel them
may exist in that other, but the alternative of departing and retaining the right of self-government
may exist in them. And such they certainly do possess; it has never been questioned, nor any
attempt made at subjugating them as a people or restraining their personal liberty except as to
their land and trade.
 
But in no sense can they be deemed a foreign state under the Judiciary Article.
 
It does seem unnecessary on this point to do more than put the question whether the makers of
the Constitution could have intended to designate them, when using the epithets "foreign" and
"state." "State" and "foreign state" are used in contradistinction to each other. We had then just
emerged ourselves from a situation having much stronger claims than the Indians for admission
into the family of nations, and yet we were not admitted until we had declared ourselves no
longer provinces, but States, and shown some earnestness and capacity in asserting our claim to
be enfranchised. Can it then be supposed that, when using those terms, we meant to include any
others than those who were admitted into the community of nations, of whom most notoriously
the Indians were no part?
 
The argument is that they were States, and if not States of the union, must be foreign states. But
I think it very clear that the Constitution neither speaks of them as States or foreign states, but as
just what they were, Indian tribes, an anomaly unknown to the books that treat of States, and
which the law of nations would regard as nothing more than wandering hordes, held together
only by ties of blood and habit, and [p*28] having neither laws or government beyond what is
required in a savage state. The distinction is clearly made in that section which vests in Congress
power to regulate commerce between the United States with foreign nations and the Indian tribes.
 
The language must be applied in one of three senses: either in that of the law of nations, or of the
vernacular use, or that of the Constitution. In the first, although it means any State not subject to
our laws, yet it must be a State, and not a hunter horde; in the vernacular, it would not be applied
to a people within our limits and at our very doors; and in the Constitution, the two epithets are
used in direct contradistinction. The latter words were unnecessary if the first included the Indian
tribes. There is no ambiguity, though taken literally; and if there were, facts and circumstances
altogether remove it.
 
But, had I been sitting alone in this cause, I should have waived the consideration of personal
description altogether, and put my rejection of this motion upon the nature of the claim set up,
exclusively.
 
I cannot entertain a doubt that it is one of a political character altogether, and wholly unfit for the
cognizance of a judicial tribunal. There is no possible view of the subject, that I can perceive, in
which a Court of justice can take jurisdiction of the questions made in the bill. The substance of
its allegations may be thus set out.
 
That the complainants have been from time immemorial lords of the soil they occupy. That the
limits by which they hold it have been solemnly designated and secured to them by treaty and by
laws of the United States. That, within those limits, they have rightfully exercised unlimited
jurisdiction, passing their own laws and administering justice in their own way. That, in
violation of their just rights so secured to them, the State of Georgia has passed laws authorizing
and requiring the executive and judicial powers of the State to enter their territory and put down
their public functionaries. That, in pursuance of those laws, the functionaries of Georgia have
entered their territory with an armed force and put down all powers legislative, executive. and
judicial exercised under the government of the Indians.
 
What does this series of allegations exhibit but a State [p*29] of war and the fact of invasion?
They allege themselves to be a sovereign independent State, and set out that another sovereign
State has, by its laws, its functionaries, and its armed force, invaded their State and put down
their authority. This is war in fact; though not being declared with the usual solemnities, it may
perhaps be called war in disguise. And the contest is distinctly a contest for empire. It is not a
case of meum and tuum in the judicial, but in the political, sense. Not an appeal to laws, but to
force. A case in which a sovereign undertakes to assert his right upon his sovereign
responsibility; to right himself, and not to appeal to any arbiter but the sword, for the justice of
his cause. If the State of Maine were to extend its laws over the province of New Brunswick,
and send its magistrates to carry them into effect, it would be a parallel case. In the Nabob of
Arcot's Case, 4 Bro.Cha.Ca. and 1 and 2 Vesey, Jun., a case of a political character not one half
so strongly marked as this, the Courts of Great Britain refused to take jurisdiction because it had
its origin in treaties entered into between sovereign States -- a case in which the appeal is to the
sword and to Almighty justice, and not to Courts of law or equity. In the exercise of sovereign
right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and
subjugation.
 
But there is still another ground in this case which alone would have prevented me from
assuming jurisdiction, and that is the utter impossibility of doing justice, at least evenhanded
justice, between the parties. As to restoring the complainant to the exercise of jurisdiction, it will
be seen at once that that is no case for the action of a court; and as to quieting him in possession
of the soil, what is the case on which the complainant would have this Court to act? Either the
Cherokee Nation are a foreign state or they are not. If they are not, then they cannot come here,
and if they are, then how can we extend our jurisdiction into their country?
 
We are told that we can act upon the public functionaries in the State of Georgia, without the
limits of the nation. But suppose that Georgia should file a cross-bill, as she certainly may if we
can entertain jurisdiction in this case, and should in her bill claim to be put in possession of the
whole Indian country, and we should decide in her favour; how is [p*30] that decree to be
carried into effect? Say as to soil; as to jurisdiction, it is not even to be considered. From the
complainant's own showing, we could not do justice between the parties. Nor must I be
considered as admitting that this Court could, even upon the other alternative, exercise a
jurisdiction over the person respecting lands under the jurisdiction of a foreign nation. I know of
no such instance. In Penn v. Lord Baltimore, the persons were in England and the land within
the king's dominions though in America.
 
There is still another view in which this cause of action may be considered in regard to its
political nature. The United States finding themselves involved in conflicting treaties, or at least
in two treaties respecting the same property, under which two parties assert conflicting claims;
one of the parties, putting itself upon its sovereign right, passes laws which in effect declare the
laws and treaties under which the other party claims, null and void. It proceeds to carry into
effect those laws by means of physical force, and the other party appeals to the executive
department for protection. Being disappointed there, the party appeals to this Court, indirectly to
compel the executive to pursue a course of policy which his sense of duty or ideas of the law
may indicate should not be pursued. That is to declare war against a State, or to use the public
force to repel the force and resist the laws of a State, when his judgment tells him the evils to
grow out of such a course may be incalculable.
 
What these people may have a right to claim of the executive power is one thing; whether we are
to be the instruments to compel another branch of the government to make good the stipulations
of treaties is a very different question. Courts of justice are properly excluded from all
considerations of policy, and therefore are very unfit instruments to control the action of that
branch of government. which may often be compelled by the highest considerations of public
policy to withhold even the exercise of a positive duty.
 
There is then a great deal of good sense in the rule laid down in the Nabob of Arcot's Case,
to-wit, that, as between sovereigns, breaches of treaty were not breaches of contract cognizable
in a Court of justice, independent of the general principle that, for their political acts, States were
not amenable to tribunals of justice. [p*31]
 
There is yet another view of this subject which forbids our taking jurisdiction. There is a law of
the United States which purports to make every trespass set out in the bill to be an offence
cognizable in the Courts of the United States. I mean the Act of 1802, which makes it penal to
violate the Indian territory.
 
The infraction of this law is, in effect, the burden of complaint. What then in fact is this bill but a
bill to obtain an injunction against the commission of crimes? If their territory has been
trespassed upon against the provisions of that act, no law of Georgia could repeal that act or
justify the violation of its provisions. And the remedy lies in another Court and form of action, or
another branch of jurisprudence.
 
I cannot take leave of the case without one remark upon the leading argument on which the
exercise of jurisdiction here over cases occurring in the Indian country has been claimed for the
complainant. Which was that the United States in fact exercised jurisdiction over it by means of
this and other acts, to punish offences committed there.
 
But this argument cannot bear the test of principle. For the jurisdiction of a country may be
exercised over her citizens wherever they are, in right of their allegiance, as it has been in the
instance of punishing offences committed against the Indians. And, also, both under the
Constitution and the treaty of Hopewell, the power of Congress extends to regulating their trade,
necessarily within their limits. But this cannot sanction the exercise of jurisdiction beyond the
policy of the acts themselves, which are altogether penal in their provisions.
 
I vote for rejecting the motion.
 
BALDWIN, Separate Opinion
 
Mr. Justice BALDWIN.
 
As jurisdiction is the first question which must arise in every cause, I have confined my
examination of this entirely to that point, and that branch of it which relates to the capacity of the
plaintiffs to ask the interposition of this Court. I concur in the opinion of the Court in dismissing
the bill, but not for the reasons assigned.
 
In my opinion there is no plaintiff in this suit, and this opinion precludes any examination into
the merits of the bill or the weight of any minor objections. My judgment stops [p*32] me at the
threshold, and forbids me to examine into the acts complained of.
 
As the reasons for the judgment of the Court seem to me more important than the judgment itself
in its effects on the peace of the country and the condition of the complainants, and as I stand
alone on one question of vital concern to both, I must give my reasons in full. The opinion of
this Court is of high authority in itself, and the judge who delivers it has a support as strong in
moral influence over public opinion as any human tribunal can impart. The judge who stands
alone in decided dissent on matters of the infinite magnitude which this case presents must sink
under the continued and unequal struggle unless he can fix himself by a firm hold on the
Constitution and laws of the country. He must be presumed to be in the wrong until he proves
himself to be in the right. Not shrinking even from this fearful issue, I proceed to consider the
only question which I shall ever examine in relation to the rights of Indians to sue in the federal
Courts until convinced of my error in my present convictions.
 
My view of the plaintiffs being a sovereign independent nation or foreign state, within the
meaning of the Constitution, applies to all the tribes with whom the Unites States have held
treaties, for if one is a foreign nation or State, all others in like condition must be so in their
aggregate capacity, and each of their subjects or citizens, aliens, capable of suing in the circuit
Courts. This case then is the case of the countless tribes who occupy tracts of our vast domain;
who, in their collective and individual characters as States or aliens, will rush to the federal
Courts in endless controversies growing out of the laws of the States or of Congress.
 
In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the
proceedings of the old Congress, from the commencement of the revolution up to the adoption of
the Constitution, so as to ascertain whether the Indians were considered and treated with as tribes
of savages, or independent nations, foreign states on an equality with any other foreign state or
nation, and whether Indian affairs were viewed as those of foreign nations, and, in connection
with this view, refer to the acts of the federal government on the same subject. [p*33]
 
In 1781, 1 Laws U.S. 586 &c., a department for foreign affairs was established to which was
entrusted all correspondence and communication with the ministers or other officers of foreign
powers, to be carried on through that office also with the Governors and Presidents of the
several States, and to receive the applications of all foreigners, letters of sovereign powers, plans
of treaties, conventions, &c. and other acts of Congress relative to the department of foreign
affairs, and all communications as well to as from the United States in Congress assembled were
to be made through the secretary, and all papers on the subject of foreign affairs to be addressed
to him. The same department was established under the present Constitution in 1789, and with
the same exclusive control over all the foreign concerns of this government with foreign states or
princes. 2 Laws U.S. 6, 7. In July, 1775, Congress established a department of Indian affairs,
to be conducted under the superintendence of commissioners. 1 Laws U.S. 597. By the
Ordinance of August, 1786, for the regulation of Indian affairs, they were placed under the
control of the War Department, 1 Laws U.S. 614, continued there by the Act of August, 1789 (2
Laws U.S. 32, 33), under whose direction they have ever since remained. It is clear then, that
neither the old or new government did ever consider Indian affairs, the regulation of our
intercourse or treaties with them, as forming any part of our foreign affairs or concerns with
foreign nations, States, or princes.
 
I will next inquire how the Indians were considered -- whether as independent nations or tribes
with whom our intercourse must be regulated by the law of circumstances. In this examination it
will be found that different words have been applied to them in treaties and resolutions of
Congress -- nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees for
instance, or the Cherokee Nation. I shall not stop to inquire into the effect which a name or title
can give to a resolve of Congress, a treaty or convention with the Indians, but into the substance
of the thing done, and the subject matter acted on, believing it requires no reasoning to prove that
the omission of the words prince, State, sovereignty or nation, cannot divest a contracting party
of these [p*34] national attributes, which are inherent in sovereign power pure and self-existing,
or confer them by their use, where all the substantial requisites of sovereignty are wanting.
 
The proceedings of the old Congress will be found in 1 Laws U.S. 597, commencing 1st. June,
1775, and ending 1st September, 1788, of which some extracts will be given. 30th June, 1775:
 
Resolved, that the committee for Indian affairs do prepare proper talks to the several tribes of
Indians. As the Indians depend on the colonists for arms, ammunition and clothing, which are
become necessary for their subsistence. . . . That the commissioners have power to treat with the
Indians; . . . to take to their assistance gentlemen of influence among the Indians. . . . To
preserve the confidence and friendship of the Indians, and prevent their suffering for want of the
necessaries of life, £40,000 sterling of Indian goods be imported. . . . No person shall be
permitted to trade with the Indians without a licence; . . . traders shall sell their goods at
reasonable prices, allow them to the Indians for their skins, and take no advantage of their
distress and intemperance; . . . the trade to be only at posts designated by the commissioners.
 
Specimens of the kind of intercourse between the Congress and deputations of Indians may be
seen in pages 602 and 603. They need no incorporation into a judicial opinion.
 
In 1782, a committee of Congress report that all the lands belonging to the six nations of Indians
have been in due form put under the crown as appendant to the government of New York, so far
as respects jurisdiction only; that that colony has borne the burthen of protecting and supporting
the six nations of Indians and their tributaries for one hundred years, as the dependents and allies
of that government; that the crown of England has always considered and treated the country of
the six nations as one appendant to the government of New York; that they have been so
recognized and admitted by their public acts by Massachusetts, Connecticut, Pennsylvania,
Maryland and Virginia; that, by accepting this cession, the jurisdiction of the whole western
territory, belonging to the six nations and their tributaries, will be vested in the United States,
greatly to the advantage of the union [p. 606]. The cession alluded to is the [p*35] one from
New York, March 1st, 1781, of the soil and jurisdiction of all the land in their charter west of the
present boundary of Pennsylvania (1 Laws U.S. 471), which was executed in Congress and
accepted.
 
This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this
subject to the adoption of the Constitution. The cession from Virginia in 1784 was of soil and
jurisdiction. So from Massachusetts in 1785, from Connecticut in 1800, from South Carolina in
1787, from Georgia in 1802. North Carolina made a partial cession of land, but a full one of her
sovereignty and jurisdiction of all without her present limits in 1789. 2 Laws United States 85.
 
Some States made reservations of lands to a small amount, but, by the terms of the cession, new
States were to be formed within the ceded boundaries, to be admitted into the union on an equal
footing with the original States, of course, not shorn of their powers of sovereignty and
jurisdiction within the boundaries assigned by Congress to the new States. In this spirit,
Congress passed the celebrated Ordinance of July, 1787, by which they assumed the government
of the Northwestern Territory, paying no regard to Indian jurisdiction, sovereignty, or their
political rights, except providing for their protection, authorizing the adoption of laws
 
which, for the prevention of crimes and injuries, shall have force in all parts of the district, and
for the execution of process civil and criminal, the Governor has power to make proper division
thereof.
 
1 Laws United States 477. By the fourth article, the said territory, and the States which may be
formed therein, shall forever remain a part of this confederacy of the United States, subject to the
Articles of Confederation, alterations constitutionally made, the acts and ordinances of Congress.
 
This shows the clear meaning and understanding of all the ceding States, and of Congress, in
accepting the cession of their western lands up to the time of the adoption of the Constitution.
The application of these acts to the provisions of the Constitution will be considered hereafter. A
few more references to the proceedings of the old Congress in relation to the Indian nations will
close this view of the case. [p*36]
 
In 1782, a committee, to whom was referred a letter from the secretary at war, reported
 
that they have had a conference with the two deputies from the Catawba Nation of Indians; that
their mission respects certain tracts of land reserved for their use in the State of South Carolina,
which they wish may be so secured to their tribe, as not to be intruded into by force, nor
alienated even with their own consent -- whereupon, resolved, that it be recommended to the
Legislature of South Carolina to take such measures for the satisfaction and security of the said
tribe as the said Legislature shall in their wisdom think fit.
 
1 Laws United States 667. After this, the Catawbas cannot well be considered an independent
nation or foreign state. In September, 1783, shortly after the preliminary treaty of peace,
Congress, exercising the powers of acknowledged independence and sovereignty, issued a
proclamation beginning in these words:
 
Whereas, by the ninth of the articles of confederation, it is, among other things declared that the
United States, in Congress assembled, have the sole and exclusive right and power of regulating
the trade, and managing all affairs with the Indians not members of any of the States, provided
that the legislative right of every State, within its own limits, be not infringed or violated,
 
prohibiting settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction
of any particular State, and from purchasing or receiving gifts of land without the express
authority and directions of the United States in Congress assembled. Conventions were to be
held with the Indians in the northern and middle departments for the purpose of receiving them
into the favour and protection of the United States, and of establishing boundary lines of
property, for separating and dividing the settlements of the citizens from the Indian villages and
hunting grounds, &c.
 
Resolved that the preceding measures of Congress, relative to Indian affairs, shall not be
construed to affect the territorial claims of any of the States, or their legislative rights within their
respective limits. Resolved, that it will be wise and necessary to erect a district of the western
territory into a distinct government, and that a committee be appointed to prepare a plan for a
temporary government until the inhabitants shall form a permanent Constitution [p*37] for
themselves, and as citizens of a free, sovereign, and independent State, be admitted to a
representation in the union.
 
In 1786, a general ordinance was passed for the regulation of Indian affairs under the authority
of the ninth article of the confederation which throws much light on our relations with them. P.
614. It closes with a direction that, in all cases where transactions with any Nation or tribe of
Indians shall become necessary for the purposes of the ordinance which cannot be done without
interfering with the legislative rights of a State, the superintendent within whose district the same
shall happen shall act in conjunction with the authority of such State.
 
After accepting the cessions of the soil and jurisdiction of the western territory and resolving to
form a temporary government and create new, free, sovereign, and independent States, Congress
resolved, in March, 1785, to hold a treaty with the western Indians. They gave instructions to the
commissioners in strict conformity with their preceding resolutions, both of which were wholly
incompatible with the national or sovereign character of the Indians with whom they were about
to treat. They will be formed in pages 611, &c. and need not be particularized.
 
I now proceed to the instructions which preceded the treaty of Hopewell with the complainants,
the treaty, and the consequent proceedings of Congress. On the 15th March 1785,
commissioners were appointed to treat with the Cherokees and other Indians southward of them,
within the limits of the United States, or who have been at war with them, for the purpose of
making peace with them, and of receiving them into the favour and protection of the United
States, &c. They were instructed to demand that all prisoners, negroes and other property taken
during the war be given up; to inform the Indians of the great occurrences of the last war; of the
extent of country relinquished by the late treaty of peace with Great Britain; to give notice to the
Governors of Virginia, North and South Carolina and Georgia that they may attend if they think
proper; and were authorized to expend four thousand dollars in making presents to the Indians --
a matter well understood in making Indian treaties, but unknown at least in our treaties with
foreign nations, princes [p*38] or States, unless on the Barbary Coast. A treaty was accordingly
made in November following between the commissioners plenipotentiaries of the United States,
of the one part, and the headmen and warriors of all the Cherokees, of the other. The word
nation is not used in the preamble or any part of the treaty, so that we are left to infer the capacity
in which the Cherokees contracted, whether as an independent nation or foreign state or a tribe of
Indians, from the terms of the treaty, its stipulations and conditions. "The Indians, for
themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under
the protection of the United States." Article 3d, 1 Laws U.S. 322.
 
The boundary allotted to the Cherokees for their hunting grounds between the said Indians and
the citizens of the United States, within the limits of the United States, is and shall be the
following,
 
viz. (as defined in Article 4th).
 
For the benefit and comfort of the Indians, and for the prevention of injuries and aggressions on
the part of the citizens or Indians, the United States in Congress assembled shall have the sole
and exclusive right of regulating the trade with the Indians, and managing all their affairs in such
manner as they shall think proper.
 
Article 9.
 
That the Indians may have full confidence in the justice of the United States respecting their
interests, they shall have the right to send a deputy of their choice whenever they think fit to
Congress.
 
Article 12th.
 
This treaty is in the beginning called "Article;" the word "treaty" is only to be found in the
concluding line, where it is called "this definitive treaty." But article or treaty, its nature does not
depend upon the name given it. It is not negotiated between ministers on both sides representing
their nations; the stipulations are wholly inconsistent with sovereignty; the Indians acknowledge
their dependent character, hold the lands they occupy as an allotment of hunting grounds; give to
Congress the exclusive right of regulating their trade and managing all their affairs as they may
think proper. So it was understood by Congress as declared by them in their proclamation of 1st
September, 1788 (1 Laws U.S. 619), and so understood at the adoption of the Constitution.
[p*39]
 
The meaning of the words "deputy to Congress" in the twelfth article may be as a person having
a right to sit in that body, as at that time it was composed of delegates or deputies from the
States, not as at present, representatives of the people of the States; or it may be as an agent or
minister. But if the former was the meaning of the parties, it is conclusive to show that he was
not and could not be the deputy of a foreign state wholly separated from the union. If he sat in
Congress as a deputy from any State, it must be one having a political connection with, and
within the jurisdiction of the confederacy; if as a diplomatic agent, he could not represent an
independent or sovereign nation, for all such have an unquestioned right to send such agents
when and where they please. The securing the right by an express stipulation of the treaty, the
declared objects in conferring the right, especially when connected with the ninth article, show
beyond a doubt it was not to represent a foreign state or nation or one to whom the least vestige
of independence or sovereignty as to the United States appertained. There can be no dependence
so anti-national, or so utterly subversive of national existence, as transferring to a foreign
government the regulation of its trade and the management of all their affairs at their pleasure.
The nation or State, tribe or village, headmen or warriors of the Cherokees, call them by what
name we please, call the articles they have signed a definitive treaty or an indenture of servitude;
they are not by its force or virtue a foreign state capable of calling into legitimate action the
judicial power of this union, by the exercise of the original jurisdiction of this Court against a
sovereign State, a component part of this nation. Unless the Constitution has imparted to the
Cherokees a national character never recognized under the confederation; and which, if they ever
enjoyed, was surrendered by the treaty of Hopewell, they cannot be deemed in this Court
plaintiffs in such a case as this.
 
In considering the bearing of the Constitution on their rights, it must be borne in mind that a
majority of the States represented in the convention had ceded to the United States the soil and
jurisdiction of their western lands, or claimed it to be remaining in themselves; that Congress
asserted as to the ceded, and the States as to the unceded territory, their right to the soil
absolutely and the dominion in full sovereignty, [p*40] within their respective limits, subject
only to Indian occupancy, not as foreign states or nations, but as dependent on and appendant to
the State governments; that, before the convention acted, Congress had erected a government in
the Northwestern Territory containing numerous and powerful nations or tribes of Indians whose
jurisdiction was continued and whose sovereignty was overturned, if it ever existed, except by
permission of the States or Congress, by ordaining that the territorial laws should extend over the
whole district, and directing divisions for the execution of civil and criminal process in every
part; that the Cherokees were then dependants, having given up all their affairs to the regulation
and management of Congress, and that all the regulations of Congress over Indian affairs were
then in force over an immense territory, under a solemn pledge to the inhabitants that whenever
their population and circumstances would admit, they should form constitutions and become
free, sovereign and independent States on equal footing with the old component members of the
confederation; that, by the existing regulations and treaties, the Indian tenure to their lands was
their allotment as hunting grounds, without the power of alienation, that the right of occupancy
was not individual; that the Indians were forbidden all trade or intercourse with any person not
licensed or at a post not designated by regulation; that Indian affairs formed no part of the foreign
concerns of the government; and that, though they were permitted to regulate their internal affairs
in their own way, it was not by any inherent right acknowledged by Congress or reserved by
treaty, but because Congress did not think proper to exercise the sole and exclusive right,
declared and asserted in all their regulations from 1775 to 1788, in the Articles of Confederation,
in the Ordinance of 1787 and the Proclamation of 1788, which the plaintiffs solemnly recognized
and expressly granted by the treaty of Hopewell in 1785 as conferred on Congress to be
exercised as they should think proper.
 
To correctly understand the Constitution, then, we must read it with reference to this well known
existing State of our relations with the Indians -- the United States asserting the right of soil,
sovereignty, and jurisdiction, in full dominion, the Indians occupant of allotted hunting grounds.
 
We can thus expound the Constitution without a reference [p*41] to the definitions of a State or
nation by any foreign writer, hypothetical reasoning, or the dissertations of the Federalist. This
would be to substitute individual authority in place of the declared will of the sovereign power of
the union in a written fundamental law. Whether it is the emanation from the people or the States
is a moot question, having no bearing on the supremacy of that supreme law which, from a
proper source, has rightfully been imposed on us by sovereign power. Where its terms are plain,
I should, as a dissenting judge, deem it judicial sacrilege to put my hands on any of its
provisions and arrange or construe them according to any fancied use, object, purpose, or motive
which, by an ingenious train of reasoning, I might bring my mind to believe was the reason for
its adoption by the sovereign power, from whose hands it comes to me as the rule and guide to
my faith, my reason, and judicial oath. In taking out, putting in, or varying the plain meaning of
a word or expression to meet the results of my poor judgment as to the meaning and intention of
the great charter, which alone imparts to me my power to act as a judge of its supreme
injunctions, I should feel myself acting upon it by judicial amendments, and not as one of its
executors. I will not add unto these things; I will not take away from the words of this book of
prophecy; I will not impair the force or obligation of its enactments, plain and unqualified in its
terms, by resorting to the authority of names, the decisions of foreign courts, or a reference to
books or writers. The plain ordinances are a safe guide to my judgment. When they admit of
doubt, I will connect the words with the practice, usages, and settled principles of this
Government, as administered by its fathers before the adoption of the Constitution, and refer to
the received opinion and fixed understanding of the high parties who adopted it, the usage and
practice of the new government acting under its authority, and the solemn decisions of this
Court, acting under its high powers and responsibility, nothing fearing that, in so doing, I can
discover some sound and safe maxims of American policy and jurisprudence, which will always
afford me light enough to decide on the constitutional powers of the federal and State
governments and all tribunals acting under their authority. They will at least enable me to judge
of the true meaning and [p*42] spirit of plain words, put into the forms of constitutional
provisions, which this Court in the great case of Sturges and Crowninshield say
 
is to be collected chiefly from its words. It would be dangerous in the extreme to infer from
extrinsic circumstances that a case for which the words of an instrument expressly provide shall
be exempted from its operation. Where words conflict with each other, where the different
clauses of an instrument bear upon each other and would be inconsistent unless the natural and
common import of words be varied, construction becomes necessary, and a departure from the
obvious meaning of words is justifiable.
 
But the absurdity and injustice of applying the provision to the case must be so monstrous that all
mankind would without hesitation unite in rejecting the application. 4 Wheat. 202, 203.
 
In another great case, Cohens v. Virginia, this Court say,
 
the jurisdiction of this Court then, being extended by the letter of the Constitution to all cases
arising under it or under the laws of the United States, it follows that those who would withdraw
any case of this description from that jurisdiction must sustain the exemption they claim on the
spirit and true meaning of the Constitution, which spirit and true meaning must be so apparent as
to overrule the words which its framers have employed.
 
6 Wheat. 379, 380.
 
The principle of these cases is my guide in this. Sitting here, I shall always bow to such
authority, and require no admonition to be influenced by no other in a case where I am called on
to take a part in the exercise of the judicial power over a sovereign State.
 
Guided by these principles, I come to consider the third clause of the second section of the first
article of the Constitution, which provides for the apportionment of representatives, and direct
taxes "among the several States which may be included within this union according to their
respective numbers, excluding Indians not taxed." This clause embraces not only the old, but the
new, States to be formed out of the territory of the United States, pursuant to the resolutions and
ordinances of the old Congress, and the conditions of the cession from the States, or which
might arise by the division of the old. If the clause excluding Indians not taxed had not been
inserted, or should be stricken out, the whole free Indian [p*43] population of all the States
would be included in the federal numbers, coextensively with the boundaries of all the States
included in this union. The insertion of this clause conveys a clear definite declaration that there
were no independent sovereign nations or States, foreign or domestic, within their boundaries
which should exclude them from the federal enumeration, or any bodies or communities within
the States excluded from the action of the federal Constitution unless by the use of express words
of exclusion.
 
The delegates who represented the States in the convention well knew the existing relations
between the United States and the Indians, and put the Constitution in a shape for adoption
calculated to meet them; and the words used in this clause exclude the existence of the plaintiffs
as a sovereign or foreign state or nation, within the meaning of this section, too plainly to require
illustration or argument.
 
The third clause of the eighth article shows most distinctly the sense of the convention in
authorising Congress to regulate commerce with the Indian tribes. The character of the Indian
communities had been settled by many years of uniform usage under the old government,
characterized by the name of nations, towns, villages, tribes, headmen and warriors, as the
writers of resolutions or treaties might fancy, governed by no settled rule, and applying the word
Nation to the Catawbas as well as the Cherokees. The framers of the Constitution have thought
proper to define their meaning to be that they were not foreign nations nor States of the union,
but Indian tribes, thus declaring the sense in which they should be considered under the
Constitution, which refers to them as tribes only, in this clause. I cannot strike these words from
the book, or construe Indian tribes in this part of the Constitution to mean a sovereign State
under the first clause of the second section of the third article. It would be taking very great
liberty in the exposition of a fundamental law to bring the Indians under the action of the
legislative power as tribes, and of the judicial as foreign states. The power conferred to regulate
commerce with the Indian tribes is the same given to the old Congress by the ninth article of the
old confederation, "to regulate trade with the Indians." The raising the word "trade" to the dignity
of commerce, [p*44] regulating it with Indians or Indian tribes, is only a change of words. Mere
phraseology cannot make Indians nations, or Indian tribes foreign states.
 
The second clause of the third section of the fourth article of the Constitution is equally
convincing. "The Congress shall have power to dispose of, and make all needful regulations and
rules respecting the territory of the United States." What that territory was, the rights of soil,
jurisdiction, and sovereignty claimed and exercised by the States and the old Congress, has been
already seen. It extended to the formation of a government whose laws and process were in force
within its whole extent, without a saving of Indian jurisdiction. It is the same power which was
delegated to the old Congress, and, according to the judicial interpretation given by this Court in
Gibbons v. Ogden, 9 Wheaton 209, the word "to regulate" implied in its nature full power over
the thing to be regulated; it excludes, necessarily, the action of all others that would perform the
same operation on the same thing. Applying this construction to commerce and territory leaves
the jurisdiction and sovereignty of the Indian tribes wholly out of the question. The power given
in this clause is of the most plenary kind. Rules and regulations respecting the territory of the
United States; they necessarily include complete jurisdiction. It was necessary to confer it
without limitation to enable the new government to redeem the pledge given by the old in relation
to the formation and powers of the new States. The saving of "the claims" of "any particular
State" is almost a copy of a similar provision, part of the ninth article of the old confederation,
thus delivering over to the new Congress the power to regulate commerce with the Indian tribes
and regulate the territory they occupied, as the old had done from the beginning of the revolution.
 
The only remaining clause of the Constitution to be considered is the second clause in the sixth
article. "All treaties made, or to be made, shall be the supreme law of the land."
 
In Chirac v. Chirac, this Court declared that it was unnecessary to inquire into the effect of the
treaty with France in 1778 under the old confederation, because the confederation had yielded to
our present Constitution, and this treaty had been the supreme law of the land. 2 Wheaton 271. I
[p*45] consider the same rule as applicable to Indian treaties, whether considered as national
compacts between sovereign powers or as articles, agreements, contracts or stipulations on the
part of this government, binding and pledging the faith of the Nation to the faithful observance of
its conditions. They secure to the Indians the enjoyment of the rights they stipulate to give or
secure, to their full extent, and in the plenitude of good faith; but the treaties must be considered
as the rules of reciprocal obligations. The Indians must have their rights, but must claim them in
that capacity in which they received the grant or guarantee. They contracted by putting
themselves under the protection of the United States, accepted of an allotment of hunting
grounds, surrendered and delegated to Congress the exclusive regulation of their trade and the
management of all their own affairs, taking no assurance of their continued sovereignty, if they
had any before, but relying on the assurance of the United States that they might have full
confidence in their justice respecting their interests, stipulating only for the right of sending a
deputy of their own choice to Congress. If, then, the Indians claim admission to this Court under
the treaty of Hopewell, they cannot be admitted as foreign states, and can be received in no other
capacity.
 
The legislation of Congress under the Constitution in relation to the Indians has been in the same
spirit, and guided by the same principles, which prevailed in the old Congress and under the old
confederation. In order to give full effect to the Ordinance of 1787, in the Northwest Territory, it
was adapted to the present Constitution of the United States in 1789, 2 Laws U.S. 33; applied as
the rule for its government to the territory south of the Ohio in 1790, except the sixth article, 2
Laws U.S. 104; to the Mississippi territory in 1798, 3 Laws U.S. 39, 40, and, with no
exception, to Indiana in 1800, 3 Laws U.S. 367; to Michigan in 1805, 3 Laws U.S. 632; to
Illinois in 1809, 4 Laws U.S. 198.
 
In 1802, Congress passed the act regulating trade and intercourse with the Indian tribes in which
they assert all the rights exercised over them under the old confederation, and do not alter in any
degree their political relations, 3 Laws U.S. 460, et seq. In the same year, Georgia ceded her
lands west of her present boundary to the United States, and, by the [p*46] second article of the
convention, the United States ceded to Georgia whatever claim, right or title they may have to the
jurisdiction or soil of any lands south of Tennessee, North or South Carolina, and east of the line
of the cession by Georgia. So that Georgia now has all the rights attached to her by her
sovereignty within her limits, and which are saved to her by the second section of the fourth
article of the Constitution, and all the United States could cede either by their power over the
territory or their treaties with the Cherokees.
 
The treaty with the Cherokees, made at Holston in 1791, contains only one article which has a
bearing on the political relations of the contracting parties. In the second article, the Cherokees
stipulate "that the said Cherokee Nation will not hold any treaty with any foreign power,
individual State, or with individuals of any State." 1 Laws U.S. 326. This affords an instructive
definition of the words nation and treaty. At the treaty of Hopewell, the Cherokees, though
subdued and suing for peace, before divesting themselves of any of the rights or attributes of
sovereignty which this government ever recognized them as possessing by the consummation of
the treaty, contracted in the name of the headmen and warriors of all the Cherokees; but at
Holston in 1791, in abandoning their last remnant of political right, contracted as the Cherokee
Nation, thus ascending in title as they descended in power, and applying the word treaty to a
contract with an individual, this consideration will divest words of their magic.
 
In thus testing the rights of the complainants as to their national character by the old
confederation, resolutions and ordinances of the old Congress, the provisions of the
Constitution, treaties held under the authority of both, and the subsequent legislation thereon, I
have followed the rule laid down for my guide by this Court, in Foster v. Elam, 2 Peters, 307,
in doing it according to the principles established by the political department of the Government.
 
If the course of the nation has been a plain one, its courts would hesitate to pronounce it
erroneous. However individual judges may construe them [treaties], it is the province of the
Court to conform its decisions to the will of the Legislature, if that will has been clearly
expressed.
 
That the existence of foreign states cannot be known to this Court judicially except by some
[p*47] act or recognition of the other departments of this government is, I think, fully established
in the case of Palmer, 3 Wheaton 634, 635; The Pastora, 4 Wheaton 63; and The Anna, 6
Wheaton 193.
 
I shall resort to the same high authority as the basis of my opinion on the powers of the State
governments.
 
By the revolution, the duties as well as the powers of government devolved on the people of
[Georgia] New Hampshire. It is admitted that among the latter were comprehended the
transcendent powers of Parliament, as well as those of the executive department.
 
Dartmouth College v. Woodward, 4 Wheat. 451, 454 Wheat. 192; Green v. Biddle, 8 Wheat.
98; Ogden v. Saunders, 12 Wheat. 254, &c.
 
The same principle applies, though with no greater force, to the different States of America; for
though they form a confederated government, yet the several States retain their individual
sovereignties, and, with respect to their municipal regulations, are to each other foreign.
 
Buckner v. Findley, 2 Peters 591. The powers of government which thus devolved on Georgia
by the revolution over her whole territory are unimpaired by any surrender of her territorial
jurisdiction by the old Confederation or the new Constitution, as there was in both an express
saving, as well as by the tenth article of amendments.
 
But if any passed to the United States by either, they were retroceded by the convention of 1802.
Her jurisdiction over the territory in question is as supreme as that of Congress over what the
Nation has acquired by cession from the States or treaties with foreign powers, combining the
rights of the State and general government. Within her boundaries, there can be no other nation,
community, or sovereign power which this department can judicially recognize as a foreign state,
capable of demanding or claiming our interposition so as to enable them to exercise a jurisdiction
incompatible with a sovereignty in Georgia, which has been recognized by the Constitution and
every department of this Government acting under its authority. Foreign States cannot be created
by judicial construction; Indian sovereignty cannot be roused from its long slumber, and
awakened to action by our fiat. I find no acknowledgement of it by the legislative or executive
power. [p*48] Till they have done so, I can stretch forth no arm for their relief without violating
the Constitution. I say this with great deference to those from whom I dissent; but my judgment
tells me I have no power to act, and imperious duty compels me to stop at the portal unless I can
find some authority in the judgments of this Court to which I may surrender my own.
 
Indians have rights of occupancy to their lands as sacred as the fee simple, absolute title of the
whites, but they are only rights of occupancy, incapable of alienation, or being held by any other
than common right without permission from the Government. 8 Wheaton 592. In Fletcher v.
Peck, this Court decided that the Indian occupancy was not absolutely repugnant to a seisin in
fee in Georgia, that she had good right to grant land so occupied, that it was within the State, and
could be held by purchasers under a law subject only to extinguishment of the Indian title. 6
Cranch 88, 142. 9 Cranch 11. In the case of Johnson v. M'Intosh, 8 Wheaton 543, 571, the
nature of the Indian title to land on this continent, throughout its whole extent, was most ably and
elaborately considered, leading to conclusions satisfactory to every jurist, clearly establishing
that, from the time of discovery under the royal government, the colonies, the States, the
Confederacy and this Union, their tenure was the same occupancy, their rights occupancy and
nothing more; that the ultimate absolute fee, jurisdiction and sovereignty was in the government,
subject only to such rights; that grants vested soil and dominion, and the powers of government,
whether the land granted was vacant or occupied by Indians.
 
By the treaty of peace, the powers of government and the rights of soil which had previously
been in Great Britain passed definitively to these States. 8 Wheat. 584. They asserted these
rights, and ceded soil and jurisdiction to the United States. The Indians were considered as tribes
of fierce savages -- a people with whom it was impossible to mix and who could not be governed
as a distinct society. They are not named or referred to in any part of the opinion of the Court as
nations or States, and nowhere declared to have any national capacity or attributes of sovereignty
in their [p*49] relations to the General or State governments. The principles established in this
case have been supposed to apply to the rights which the nations of Europe claimed to acquire by
discovery, as only relative between themselves, and that they did not assume thereby any rights
of soil or jurisdiction over the territory in the actual occupation of the Indians. But the language
of the Court is too explicit to be misunderstood.
 
This principle was that discovery gave title to the government by whose subjects or by whose
authority it was made, against all other European governments, which title might be
consummated by possession.
 
Those relations which were to subsist between the discoverer and the natives were to be
regulated by themselves. The rights thus acquired being exclusive, no other power could
interpose between them.
 
While the different nations of Europe respected the rights of the natives as occupants, they
asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence
of this ultimate dominion, a power to grant the soil while yet in the possessio