Cherokee Nation v. Georgia (Part Five)
According to the view which I have already taken of the case, I must consider the question of right as settled in favour of the complainants. This right rests upon the laws of the United States and treaties made with the Cherokee Nation. The construction of these laws and treaties are pure questions of law, and for the decision of the Court. There are no grounds, therefore, upon which it can be necessary to send the cause for a trial at law of the right before awarding an injunction, and the simple question is whether such a case is made out by the bill as to authorize the granting an injunction. [p*78]
This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process for the protection of rights, and is favourably viewed by courts of chancery, as its object is to prevent, rather than redress, injuries, and has latterly been more liberally awarded than formerly. 7 Ves.Jun. 307.
The bill contains charges of numerous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable ruin. 6 Ves. 147. 7 Eden 307. Every man is entitled to be protected in the possession and enjoyment of his property, and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But where, from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the case on this subject, and is founded upon the most wise and just considerations, and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages, but of injuries which go to the total destruction of the whole right of the complainants. The mischief threatened is great and irreparable. 7 Johns.Cha. 330. It is one of the most beneficial powers of a Court of equity to interpose and prevent an injury before any has actually been suffered, and this is done by a bill which is sometimes called a bill quia timet. Mitford 120.
The doctrine of this Court in the case of Osborne v. The United States Bank, 9 Wheat. 338, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the State of Ohio to restrain him from executing a law of that State which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only [p*79] question of doubt entertained by the Court in that case was as to issuing an injunction against an officer of the State to restrain him from doing an official act enjoined by statute, the State not being made a party. But even this was not deemed sufficient to deny the injunction. The Court considered that the Ohio law was made for the avowed purpose of expelling the bank from the State and depriving it of its chartered privileges, and they say, if the State could have been made a party defendant, it would scarcely be denied that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the State of Ohio. In that case, the State could not be made a party according to the Eleventh Amendment of the Constitution, the complainants being mere individuals, and not a sovereign State. But, according to my view of the present case, the State of Georgia is properly made a party defendant, the complainants being a foreign state.
The laws of the State of Georgia in this case go as fully to the total destruction of the
complainants’ rights as did the law of Ohio to the destruction of the rights of the bank in that
State, and an injunction is as fit and proper in this case to prevent the injury as it was in that.
It forms no objection to the issuing of the injunction in this case that the lands in question do not
lie within the jurisdiction of this Court. The writ does not operate in rem, but in personam. If the
party is within the jurisdiction of the Court, it is all that is necessary to give full effect and
operation to the injunction; and it is immaterial where the subject matter of the suit, which is only
affected consequentially, is situated. This principle is fully recognized by this Court in the case of
Massie v. Watts, 6 Cranch 157, when this general rule is laid down, that in a case of fraud of
trust or of contract, the jurisdiction of a court of chancery is sustainable wherever the person may
be found, although lands not within the jurisdiction of the court may be affected by the decree.
And reference is made to several cases in the English Chancery recognizing the same principle.
In the case of Penn v. Lord Baltimore, 1 Ves. 444, a specific performance of a contract [p*80]
respecting lands lying in North America was decreed, the chancellor saying the strict primary
decree of a Court of equity is in personam, and may be enforced in all cases when the person is
within its jurisdiction.
Upon the whole, I am of opinion,
1. That the Cherokees compose a foreign state within the sense and meaning of the Constitution,
and constitute a competent party of maintain a suit against the State of Georgia.
2. That the bill presents a case for judicial consideration arising under the laws of the United
States and treaties made under their authority with the Cherokee Nation, and which laws and
treaties have been, and are threatened to be still further, violated by the laws of the State of
Georgia referred to in this opinion.
3. That an injunction is a fit and proper writ to be issued to prevent the further execution of such
laws, and ought therefore to be awarded.
And I am authorised by my brother Story to say that he concurs with me in this opinion.