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Cherokee Nation v. Georgia (Part One)


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.